Disposed

Abha Nagar v. State of U.P. Thru. Addl. Chief Secy. Housing and Urban Planing Deptt. Lko. and 4 Others

Allahabad HC12 Jan 2024WRIC/387/2024

Case brief

AI extract

What is this about?

Flat-owners challenged demolition, appellate and revisional orders passed against unauthorised construction in F.I. Tower, Lucknow. The court found the show cause notice was served on the building's Manager rather than the owner contrary to Sections 27(1) and 43, and that proceedings were conducted in undue haste, staying the impugned orders and restraining demolition pending counter affidavits.

What did the court decide?

Operation of demolition, appellate and revisional orders stayed until further orders; respondents restrained from proceeding with demolition; status quo directed; counter affidavit within four weeks.

Abha Nagar vs State of U.P. Thru. Addl. Chief… — Municipal and Town Planning | Allahabad HC (2024)

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Court No. - 5

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Case :- WRIT - C No. - 387 of 2024

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Petitioner :- Abha Nagar Respondent :- State Of U.P. Thru. Addl. Chief Secy. Housing And Urban Planing Deptt. Lko. And 4 Others Counsel for Petitioner :- Abhinav Singh,Shashank Singh,Shruti Kumar Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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along with

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(2) Case :- WRIT - C No. - 388 of 2024

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Petitioner :- Smt. Sufia Bano Respondent :- State Of U.P. Thru. Addl. Chief / Prin. Secy., Housing And Urban Planning Deptt., Lko. And Others Counsel for Petitioner :- Abhinav Singh,Harsh Vardhan Kediya,Inam Uddin Ahmed,Sheeran Mohiuddin Alavi Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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(3) Case :- WRIT - C No. - 389 of 2024

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Petitioner :- Amna Ansari Thru. Power Of Attorney Respondent :- State Of U.P. Thru. Addl. Chief / Prin. Secy., Housing And Urban Planning Deptt., Lko. And Others Counsel for Petitioner :- Inam Uddin Ahmed,Abhinav Singh,Harsh Vardhan Kediya,Sheeran Mohiuddin Alavi Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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(4) Case :- WRIT - C No. - 391 of 2024

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Petitioner :- Mohammad Ahmed Khan Respondent :- State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Housing And Urban Planning Deptt. And 4 Others Counsel for Petitioner :- Abhinav Singh,Inam Uddin Ahmed,Shashank Singh

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Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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(5) Case :- WRIT - C No. - 393 of 2024

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Petitioner :- Smt. Afreen Khan Thru. Her Attorney Dr. Arif Hamid Khan Respondent :- State Of U.P. Thru. Addl. Chief / Prin. Secy., Housing And Urban Planning Deptt., Lko. And Others Counsel for Petitioner :- Inam Uddin Ahmed,Abhinav Singh,Harsh Vardhan Kediya,Shashank Singh,Sheeran Mohiuddin Alavi Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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(6) Case :- WRIT - C No. - 394 of 2024

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Petitioner :- Sabiha Karim

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Respondent :- State Of U.P. Thru. Addl. Chief/Prin. Secy. Housing And Urban Planning Deptt. Lko. And 4 Others

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Counsel for Petitioner :- Abhinav Singh,Inam Uddin Ahmed,Shashank Singh

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Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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(7) Case :- WRIT - C No. - 395 of 2024

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Petitioner :- Mohd. Tauqeer Siddiqui

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Respondent :- State Of U.P. Thru. Addl. Chief / Prin. Secy., Housing And Urban Planning Deptt., Lko. And Others Counsel for Petitioner :- Abhinav Singh,Shashank Singh Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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(8) Case :- WRIT - C No. - 396 of 2024

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Petitioner :- Arif Siddiqui

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Respondent :- State Of U.P. Thru. Addl. Chief / Prin. Secy., Housing And Urban Planning Deptt., Lko. And Others

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Counsel for Petitioner :- Inam Uddin Ahmed,Abhinav Singh,Shashank Singh,Sheeran Mohiuddin Alavi Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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Hon'ble Abdul Moin,J.

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Heard Sri Abhinav Singh, Advocate, assisted by Sri Shashank Singh, Sri Inam Uddin Ahmed, and Ms. Gursimran Kaur, learned counsels for the petitioner, Sri Shailendra Singh, learned Chief Standing Counsel for respondents no.1 and 2, and Sri Sandeep Dixit, learned Senior Advocate, assisted by Sri Ratnesh Chandra, learned counsel appearing for respondents no.3 to 5.

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These petitions have been taken up on the basis of urgency expressed by the learned counsel for the petitioners apprehending demolition and on the basis of consent granted by this Court.

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There is consensus amongst learned counsels for the contesting parties that all the aforesaid writ petitions involve a common question of law and as such the Court proceeds to hear the aforesaid writ petitions together. For

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convenience, the facts of Writ-C No. 387 of 2024 are being taken into consideration.

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Instant petition has been filed praying for quashing of the revisional order dated 10.01.2024 passed by respondent no.2, a copy of which is Annexure-1 to the writ petition, order dated 23.12.2023, a copy of which is Annexure-2 to the writ petition, passed by the appellate authority, and the demolition order dated 23.11.2023, a copy of which is Annexure-3 to the writ petition. A further prayer is for a mandamus commanding the respondents to not take any coercive action against the petitioner in pursuance to the impugned orders.

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The case set forth by the learned counsel for the petitioner is that the petitioner had purchased an apartment in which she is residing since 2005 namely Flat No.703, F.I. Tower, 37, Cantonment Road, Lucknow. A show cause notice was issued on 25.05.2022, a copy of which is Annexure-13 to the writ petition, under the provisions of Section 27(1) of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the ‘Act, 1973’). Despite proviso to Section 27(1) of the Act, 1973 providing that the said notice is to be issued to the owner or the person concerned, the said notice was issued in the name of the Manager of F.I. Tower, Lucknow.

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Reliance has been placed on the provisions of Section 43(1)(d) of the Act, 1973, to contend that Section 43 of the Act, 1973 provides the procedure for service of notice which provides that in any other case with the exception where the notice is to be served upon a company or a firm or a public body or corporation, the notice is to be addressed to the person to be served . Further Section 43 (2) of the Act, 1973 provides that any document which is required to be served on the owner or occupier of land or building be addressed to owner or occupier. The petitioner being the ‘owner’ and ‘occupier’ of the flat, no notice was served on her.

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Nevertheless, the Secretary of the Resident Welfare Association appeared and submitted his reply. Subsequent thereto, the demolition order dated 23.11.2023, a copy of which is Annexure-3 to the writ petition, was

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passed. When appeal was filed by the petitioner on 23.12.2023, no order was passed which constrained the petitioner to file a writ petition before this Court and this Court vide order dated 25.12.2023, a copy of which is Annexure-17 to the writ petition, required the appeal to be decided. In pursuance thereof, the appeal has been rejected vide order dated 30.12.2023, a copy of which is Annexure-2 to the writ petition. Being aggrieved, the petitioner filed a revision under Section 41(3) of the Act, 1973 on 03.01.2024. A writ petition was filed praying that prior to deciding the revision, no action should be taken against the petitioner. The writ Court vide order dated 05.01.2024, a copy of which is Annexure-25 to the writ petition, after recording the statement of learned Chief Standing Counsel that the revision is fixed for 08.01.2024 and that the stay application of the petitioners will be heard and decided by 10.01.2024, directed that the respondents shall not take any action for demolition till 12.01.2024.

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It is contended that the revision has been decided vide order dated 10.01.2024, a copy of which is Annexure-1, whereby the revision has been dismissed. 9. Raising a challenge to all the aforesaid orders instant writ petition has been filed.

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The contentions of learned counsel for the petitioner are manifold namely (a) that the notice issued under the provisions of Section 27 of the Act, 1973 does not conform to the proviso to Section 27(1) of the Act, 1973 and is also violative of the provisions for service of notice namely Section 43(1) & (2) of the Act, 1973 which requires that the documents which are required or authorised to be served on the owner or occupier of any land or building should be addressed to the owner or occupier (b) undue haste has been shown by the respondents while passing initially the demolition order in November, 2023, rejecting the appeal vide order dated 30.12.2023 and rejecting the revision vide order dated 10.01.2024. In this regard, reliance has been placed on the judgment of the Apex Court in the case of Zenit Mataplast Private Limited vs. State of Maharashtra – (2009) 10 SCC

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388 , to contend that any action taken in undue haste would be vitiated, and (c) demolition order mentions about the reports dated 25.05.2022 and 20.11.2023, which were never supplied to the petitioner and which is mandatory to be supplied keeping in view the Division Bench judgment of this Court in the case of Dinesh Kumar Pathak vs. State of U.P. and others passed in Misc. Bench No.17789 of 2019 decided on 21.06.2019.

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On the other hand, Sri Sandeep Dixit, learned Senior Advocate, argues that from a perusal of the initial notice that has been issued to the ‘owner’as well as the order of demolition it emerges that the construction had been raised in the setback area of 10,000 Sq. Ft. He further contends that despite no compounding of the entire area having been made, the builder raised construction of the 7^th , 8^th & 9^th storey over the land in dispute which thus entailed the authority to initially issue a notice dated 09.01.2001 indicating that the portion which is not compoundable, should be demolished by the builder and that a new compounding map should be submitted by the builder which has not been done by them till date. He further contends that once the construction has been raised illegally and without there being any sanctioned map for the same consequently, there is no error in the order of demolition having been passed, the appeal and the revision filed by the petitioner having been rejected and thus the writ petition deserves to be dismissed.

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Learned Senior Advocate also urged that any construction which is not in consonance with the sanctioned map would not be in the interest of public at large.

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Heard the learned counsels appearing on behalf of the contesting parties and perused the records.

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From a perusal of records it emerges that the petitioner purchased an apartment in a residential complex namely the F.I. Towers in the year 2005 through a registered sale deed. A Show Cause Notice was issued under the provisions of Section 27 (1) of the Act, 1973 addressed to the Manager of the F.I Tower. The Secretary of the Resident Welfare Association put an appearance before the authority concerned and submitted a reply which did

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not find favour with the authority concerned who passed the demolition order dated 23.11.2023. The appeal filed by the petitioner against the same was rejected on 30.12.2023 and even the revision has been rejected vide order dated 10.01.2024 meaning thereby that the order of demolition dated 23.11.2023 stands as of date.

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A perusal of the Show Cause Notice which has been issued to the Manager of the F.I Tower would indicate that the same has been issued under the provisions of sub Section (1) of Section 27 of the Act, 1973.

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The proviso to sub Section (1) of Section 27 of the Act, 1973 provides that no order for demolition of building (with which Section 27 relates to) shall be made unless the ‘owner’ or the ‘person concerned’ has been given a reasonable opportunity to Show Cause as to why the order should not be made.

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Prima facie once the petitioner had purchased the apartment through a registered sale deed in the year 2005, she becomes the ‘owner’ and the ‘person concerned’ as the consequences of a demolition order would obviously fall on the ‘owner’ or ‘person concerned’ and consequently it was in the fitness of things that the notice should have been served on the petitioner and not to some alleged manager of the F.I. Tower. Even if, the manager of the F.I. Tower is alleged to be an owner, as has been contended by the learned Senior Advocate appearing on behalf of the Authority, consequently, with the sale deed having been executed in favour of the petitioner in the year 2005 it is the petitioner who is the owner who should have been issued with the notice. This prima facie also appears to be the purport of sub Section (1) (d) and sub Section (2) of Section 43 of the Act, 1973.

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Even otherwise, the entire proceedings appear to have been conducted in haste inasmuch as the demolition order is of 23.11.2023, the appeal has been decided on 30.12.2023 and the revision itself has been dismissed by the State Government on 10.01.2024 meaning thereby that the entire exercise of

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demolition and the remedies as available under the provisions of the Act, 1973 have been completed in less than two months.

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The Apex Court in the case of Zenit Mataplast Private Limited (supra) has categorically held that anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.

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So far as the argument of learned Senior Advocate of any construction not being in consonance with the sanctioned map would not be in the interest of public, there cannot be any objection to the said argument. However, considering that the notice issued under the provisions of the Act, 1973 runs prima facie foul to the specific provisions of the Act, 1973 as well as the proviso to section 27(1) of the Act, 1973 and Section 43 (1)(d) and sub Section (2) of Section 43 of the Act, 1973 and the respondents prima facie appear to have acted in haste consequently the said argument does not impress this Court at this stage leaving it open for the said argument to be considered after exchange of pleadings.

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Keeping in view the aforesaid discussion, prima facie a case for interference is made out. As such, until further orders of this Court, the operation of the orders impugned dated 23.11.2023, 30.12.2023 & 10.01.2024, copies of which are annexures 3, 2 & 1 to the writ petition shall remain stayed. The respondents are also restrained from proceeding with any further demolition.

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It is also provided that this order would not be construed by the petitioner as if a license has been given for raising further construction by him inasmuch as status quo shall be maintained by the petitioner as well as the respondents pertaining to the property in dispute.

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All the respondents are granted four weeks time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

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List thereafter.

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Sri Shailendra Kumar Singh, learned Chief Standing counsel and Sri Ratnesh Chandra, learned counsel appearing on behalf of the Lucknow Development Authority shall inform about this order to the authorities concerned immediately without waiting for certified copy of this order.

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Order Date :- 12.1.2024 A. Katiyar/Pachhere

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Digitally signed by :- AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

Abha Nagar v. State of U.P. Thru. Addl. Chief Secy. Housing and Urban Planing Deptt. Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

Abha Nagar v. State of U.P. Thru. Addl. Chief Secy. Housing and Urban Planing Deptt. Lko. and 4 Others

Case brief

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