Disposed

Vinod Kumar Bhalotia v. State of U.P. and 2 Others

Allahabad HC18 Oct 2019WRIC/33319/2019

Case brief

AI extract

What is this about?

This court disposed of a writ petition challenging a Nagar Nigam's direction to construct a road over disputed land. Against a prior division bench order mandating a no-notice hearing decision, this bench remitted the matter to the Municipal Commissioner to decide the petitioner's objection within three months without taking further action on the land.

What did the court decide?

Petitioner directed to approach Municipal Commissioner for decision on objection; Registrar to decide within three months; no further action on land pending.

Vinod Kumar Bhalotia Vs State of U.P. and 2 Others — Landlord and Tenant | Allahabad HC (2019)

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Court No. - 1

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Case :- WRIT - C No. - 33319 of 2019

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Petitioner :- Vinod Kumar Bhalotia Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Srivastava Counsel for Respondent :- C.S.C.,Sanjay Kumar Tripathi

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Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.

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Heard Sri Arvind Srivastava, learned counsel for the petitioner, Sanjay Kumar Tripathi, learned counsel for the private respondents, learned Standing Counsel for the State respondents and perused the record.

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By means of present writ petition, the petitioner has questioned the legality and propriety involved in the order dated 18th July, 2019, whereby virtually direction has been issued for the construction of the road over the piece of land which the petitioner claims to be his area of set-back.

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The argument advanced by learned counsel for the petitioner is that not only order has been passed in the teeth of the order of the division bench dated 20th December, 2018 passed in Writ-C No. 30746 of 2018, but even otherwise if a land is private land of an individual, the same cannot be taken for constructing any public road or any road meant for use of public without acquiring the same in accordance with law.

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On pointed query being made as to why and in what circumstances earlier writ petition was filed, learned counsel for the petitioner submitted that earlier respondents had proceeded to make construction over the road claimed to be a set back area and for that tender was also issued without there being any notice to the petitioner regarding nature of land that was left over as set back by the petitioner and it is in those circumstances that the division bench had passed the order that the Nagar Nigam shall issue a proper notice to the petitioner under Section 289 of the U.P. Municipal Corporations Act, 1959 and it is only after coming to the conclusion and that too after hearing the petitioner that the land can be used as street and then only constructions shall be carried out.

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From perusal of the order dated 20.12 2018 we also find that the Court expressed its opinion that " in case, the Nagar Nigam comes to a conclusion that the disputed strip of land is a street as per the provisions of the Act, it shall be lawful for the Nagar Nigam to proceeded for its maintenance as per law."

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From the operative portion of the order, it also transpires that proper opportunity of hearing was to be accorded to

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the petitioner, however from the order impugned dated 18th July, 2019, it is clear that it is a positive direction for construction of the road and not a mere notice seeking reply.

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Learned counsel appearing for the respondent Nagar Nigam submits that notice and tender have not been issued and no work order has been passed. The petitioner has already submitted reply pursuant to the aforesaid notice to the Municipal Commissioner, Gorakhpur on 27th August, 2019 which is pending consideration.

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In the light of the aforesaid fact that there is already direction of the division bench for the respondent Nagar Nigam to take decision about the nature of the land and whether it can be used as street or not and proper opportunity was to be afforded to the petitioner, we are disposing of this writ petition at this stage with direction to the respondent Municipal Corporation, Gorakhpur to take decision on the objection of the petitioner dated 27th August, 2019 in the light of the observations made by the division bench of this Court dated 20.12.2018 ( supra ). We take the order dated 18th July, 2019 only as a notice and it, is therefore, directed that till decision is taken by the Municipal Commissioner, Nagar Nigam Gorakhpur, no further action shall be taken by it taking open piece of land as public or private street.

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At this stage, learned counsel for the petitioner submits that he has also challenged the relevant provision of the Municipal Corporation Act, 1959 by which even a private land can be utilized for the purpose of public use .

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In our considered opinion, once the division bench has already passed an order for proper consideration of the objection of the petitioner, we do not want that this writ petition be taken as a caveat measure to a possible decision to negate the rights of petitioner as he apprehends.

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we further provide that that after decision is taken by the Nagar Nigam and petitioner is still aggrieved, he can challenge the same and at the same time he can challenge the relevant provisions of the Act. It is further clarified that the order shall be passed by Municipal Commissioner in the light of the direction issued earlier by division bench ( supra ) within period of three months from the date of production of certified copy of this order.

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With the aforesaid observations and directions, the writ petition is disposed of.

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Order Date :- 18.10.2019 Sanjeev

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(Ajit Kumar,J.) (Ramesh Sinha,J.)

Vinod Kumar Bhalotia v. State of U.P. and 2 Others

Case brief

What is this about?

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Vinod Kumar Bhalotia v. State of U.P. and 2 Others

Case brief

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