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2021 DIGILAW 575 (ALL)

Akash Jan Kalyan Samiti v. State of U. P.

2021-06-23

SANJAY YADAV, VIVEK AGARWAL

body2021
JUDGMENT : VIVEK AGARWAL, J. 1. Matter is taken up through video conferencing. 2. Heard learned counsel for the petitioners and learned counsel for the respondents. 3. This writ petition in the name and style of Public Interest Litigation has been filed claiming following reliefs:- "(i) Issue a writ, order or direction in the nature of Mandamus directing the Secretary, Moradabad Development Authority respondent no. 6 to pass a fresh order after hearing the petitioner society in compliance of the order of the Hon'ble High Court dated 26.08.2020. (ii) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 01.10.2020 (Annexure No. 11 to this writ petition), passed by the respondent no. 6 by which the entry gate of the Akash Residency Colony towards the Madhubani Colony has been illegally sealed. (iii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no. 2 to constitute an independent, impartial, high powered committee to look into the matter of the use of the gate and the road by the residents of the Akash Residency Colony towards the Madhubani Colony and submit its report before the Hon'ble Court. (iv) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to remove the sealing of the gate of the Akash Residency Colony and allow its residence to use it in accordance with law." 4. Learned counsel for the petitioner submits that under similar facts and circumstances, P.I.L. No. 768 of 2020 was disposed of by a Coordinate Bench of this Court directing the respondent no. 6-Moradabad Development Authority, Moradabad to look into the grievance of the petitioners therein and take appropriate action in accordance with law, expeditiously, preferably within four weeks from the date of presentation of copy of this order. 5. Learned counsel for the petitioner submits that petitioner is also claiming similar order, but later on modifies his submissions and submits that because of various orders passed by the High Court directing Moradabad Development Authority to look into the grievances of different Resident Welfare Societies, problem has been caused to the petitioner and authorities be directed to give an opportunity of hearing to the petitioner and decide petitioner's representation on its own merits. 6. 6. In fact, in the guise of opportunity of hearing before the authority, the main relief claimed is for issuance of a writ, order or direction in the nature of Mandamus, commanding the respondent to remove the sealing of the gate of the Akash Residency Colony and allow its residents to use it in accordance with law. 7. In support of this prayer, learned counsel for the petitioner has placed reliance on the provisions contained in Section 26-A of Uttar Pradesh Urban Planning and Development Act, 1973. It is submitted that, even if a person has made any encroachment on a land in a development area, he has to be provided a written notice of not less than 15 days time before taking any decision to remove obstruction/encroachment. 8. Placing reliance on provisions contained in Section 26-A, it is submitted that opportunity of hearing is ingrained in the said statutory provision and petitioner is entitled to opportunity of hearing. 9. Learned counsel for respondents, in their turn, submits that petitioner has in fact, tacitly conceded that there is an encroachment of the petitioner's society on a land in a development area and therefore, authorities have sealed the gate of Akash Residency Colony. It is further submitted that if petitioner has any grievances in regard to easementary rights of its members, then the remedy, which is open to the petitioner is under the provisions of the Indian Easements Act, 1882. 10. After hearing learned counsel for the parties and referring to the provisions contained in the Act of 1973, it is apparent that the Act of 1973 provide for Zonal Development Plans. Section 14 deals with development of land in the developed area. Section 15 provides for application for permission and Section 15-A for issuance of completion certificate. Petitioners have not enclosed copy of the permission, granted by the competent authority i.e., Moradabad Development Authority granting them permission for development and have also not filed copy of completion certificate. Annexure-2, does not contain approval of Moradabad Development Authority, but is only a layout of the colony, which might have been or might not have been submitted for approval. 11. Section 26-C, authorizes the authority to remove anything erected or deposited in contraventions of the Act without notice. 12. Annexure-2, does not contain approval of Moradabad Development Authority, but is only a layout of the colony, which might have been or might not have been submitted for approval. 11. Section 26-C, authorizes the authority to remove anything erected or deposited in contraventions of the Act without notice. 12. A perusal of the order dated 01.10.2020, passed by the Secretary of Moradabad Development Authority, Annexure-11 reveals that an opportunity of hearing was given to Sri Gurjeet Singh Chaddha S/o Harbhajan Singh Chaddha vide letter dated 18.09.2020 to present is case on 25.09.2020 with a further direction that in case, party fails to present its case, then it will be proceeded ex-parte and orders will be passed in terms of the provisions contained in Section 28-A(1) of the Act of 1973. It has also come in the impugned order that Sri Chaddha had filed a reply on 25.09.2020 and accepted that as House no. 26, situated in Madhubani Extension Colony was in a dilapidated condition and therefore, this building was dismantled gradually and keeping in view safety of this passage towards Madhubani Scheme, passage was developed and was used by the residents of Akash Residency. It is mentioned in the reply that residents of the Madhubani Scheme had also not raised any objection and therefore, Sri Chaddha prayed for providing a six feet wide passage, as his properties are situated on both sides of the Scheme. 13. The Secretary of Moradabad Development Authority did not find this proposal as acceptable and ordered for sealing of the gate towards Madhubani Colony. 14. Analyzing of order dated 01.10.2020, reveals that contentions of the petitioner that there was a sanctioned gate towards the Madhubani Colony, which has been unauthorizedly sealed, is not made out. As has been discussed above, petitioner has not substantiated presence and sealing of a sanctioned exit, through any documentary evidence. It is admitted position that petitioner's society has an alternative gate for ingress and exit. 15. Section 28-A(4) provides for an alternative statutory remedy to a person aggrieved of an order made under subsection (1) or sub-section (2) to file an appeal to the Chairman against that order within 30 days from the date thereof and the Chairman may after hearing the parties to the appeal either allow or dismiss the appeal. 15. Section 28-A(4) provides for an alternative statutory remedy to a person aggrieved of an order made under subsection (1) or sub-section (2) to file an appeal to the Chairman against that order within 30 days from the date thereof and the Chairman may after hearing the parties to the appeal either allow or dismiss the appeal. Thus, it is evident that there exists an alternative statutory remedy of appeal against the order dated 01.10.2020, quashing of which has been prayed by the petitioner as part of prayer no. 2. 16. Thus, both in view of availability of alternative statutory remedy of appeal and as is evident from the impugned order dated 01.10.2020, that developer of the petitioner's colony namely, Sri Chaddha, was afforded an opportunity of hearing, inasmuch as, it is matter of record (Annexure-1) that Akash Jan Kalyan Samiti, was given registration on 05.11.2020 and was not in existence, when notices were issued to the builder/developer in pursuance of order dated 26.08.2020 passed by a Coordinate Bench and said builder/developer was afforded an opportunity of hearing, therefore, it cannot be said that petitioner, who were not in existence were required to be heard before passing of order dated 01.10.2020. Thus, petition being bereft of merits deserves to be dismissed and is dismissed.