Allowed

Rameshwar Prasad Soni v. Commissioner Devi Patan Mandal Gonda and Ors.

Allahabad HC6 Mar 2024WRIC/4778/2020

Case brief

AI extract

What is this about?

High Court allowed a writ petition quashing a District Magistrate's order and a Commissioner's revisional order under the Regulation of Building Operation Act, 1958, holding the District Magistrate lacked jurisdiction when an objection to map sanction was rejected and the reversal was based on unrecorded terms. Relief: quashing of impugned orders.

What did the court decide?

Writ petition allowed; orders dated 04.08.2014 and 15.01.2020 quashed.

Rameshwar Prasad Soni Vs Commissioner Devi Patan Mandal… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:20451

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Court No. - 6

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Case :- WRIT - C No. - 4778 of 2020 Petitioner :- Rameshwar Prasad Soni Respondent :- Commissioner Devi Patan Mandal Gonda And Ors.

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Counsel for Petitioner :- Shiwa Kant Tiwari,Abhishek Dwivedi,Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,D.P. Dutt Tiwari

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Hon'ble Alok Mathur,J.

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(C.M.A. No. 132277/2021-Delay & C.M.A. No. 132279 / 2018-Substitution)

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Heard learned counsel for parties and perused the record.

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During the pendency of the present writ petition, sole petitioner/Rameshwar Prasad Soni died on 23.10.2020, as such an application has been moved on behalf of his legal representatives to be substituted as petitioners along with application for and condonation of delay in moving the same.

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In view of the facts stated in the accompanying affidavit condonation of delay in moving the application for substituting legal representative of sole petitioner, the application is allowed.

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Delay is condoned.

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Further, cause shown in the affidavit filed in support of application for substitution is sufficient. Accordingly, the application in question is allowed,

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Let necessary substitution be made during course of the day.

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(Order on Writ Petition)

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Heard Sri Mridul Bhat, Advocate holding brief of Sri Amrendra Nath Tripathi, learned counsel for petitioner as well as learned Standing Counsel for respondents.

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By means of present writ petition, the petitioner is aggrieved by the order dated 04.08.2014 passed by District Magistrate/Controlling Authority prescribed area Balrampur in Appeal NO. 7 under Section 15(2) of U.P. Regulation of Building Operation ACt, 1958 as well as order dated

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05.01.2020 passed by the Commissioner, Devi Patan Mandal, Gonda thereby rejecting the revision under Section 15 A preferred by the petitioner.

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Facts in brief are that petitioner is owner and in possession of property situated at Naya Bazar, Balrampur and had moved an application for sanction of the map on 12.05.2010 which was allowed and the permission was granted on 27.10.2010 by the prescribed authority.

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Against the permission granted by the prescribed authority, an objection was filed by respondent No. 4 under Section 7 of the Act of 1958 on 08.11.2010. The petitioner replied to the said objection and stated that a title suit between petitioner and respondent NO. 4 has attained finality and the second appeal NO. 124 of 2004 was dismissed by the High Court on 22.08.2012 and a finding has been recorded by this Court that there is no merit in the appeal preferred by respondent No. 4.

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It is stated that again objection was given by respondent No. 4 on 10.01.2013 on which the report of the Junior Engineer was called for and was submitted on 19.02.2013. The prescribed authority by means of order dated 01.03.2013 after due consideration and also considering the fact that second appeal has already been dismissed by the High Court did not find any merits in the objections raised by respondent No. 4 and rejected the same by means of order dated 01.03.2013.

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Against the order dated 01.03.2013, respondent No. 4 preferred an appeal under Section 15 (2) of the Act before District Magistrate/Controlling Authority prescribed area Balrampur the appeal preferred by respondent No. 4 was allowed by means of order dated 04.08.2014 which order has been impugned in the present writ petition.The petitioner preferred a revision against the order dated 04.08.2014 which has also been dismissed by means of order dated 15.01.2020 which has been impugned in the present writ petition.

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7.Learned counsel for petitioner has submitted that no appeal under Section 15(2) of the Act of 1958 is maintainable against an order where the objection against sanction of the map has been rejected under Section 7(A). It is stated taht the sanctioned map being canceled by the prescribed authority in exercise of power under Section 7(A) of the Act of 1958 then an appeal would be maintainable under Sub-Clause 2 of Section 5 but considering the facts of the present case where the application of the objector has been rejected, no appeal would be maintainable.

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Learned Standing Counsel does not dispute the said fact as itself evident from a bare perusal of Section 15(2) that an appeal of the objector is not maintainable under Section 15(2) because in case the objector are sustained then the map is canceled and it is only the person who is aggrieved by the cancellation of the map can prefer an appeal under Section 15(2). Accordingly, the order dated 04.08.2014 is without jurisdiction and hence cannot be sustained. Even otherwise, it is noticed that while allowing the appeal by order dated 04.08.2014 at the behest of the objector, the appellate authority has considered the report of the Junior Engineer dated 18.12.2013 wherein he has stated that the petitioner had given an undertaking at the time of sanction of the map that he shall demolish certain portion of the house himself and as the petitioner failed to demolish the said portion of the house as per the undertaking given by him at the time of sanction of the map, deserves to be cancelled at the behest of the objector.

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I have also gone through the order dated 27.09.2010 whereby the map of the petitioner has been sanctioned. From the perusal of the order as annexed as by the petitioner dated 01.11.2010, there is no undertaking recorded either in the order or in the form annexed along with the said order. Even counter affidavit is silent on this account and hence it seems taht findings recorded by the District Magistrate are clearly perverse and contrary to record and on this account also the order dated 04.08.2014 cannot be sustained.

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In light of the aforesaid findings, this Court is of the considered view that even revisional order dated 15.01.2020 is arbitrary and illegal and deserves to be quashed.

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For the foregoing reasons, the writ petiton is allowed . The orders dated 04.08.2014 and 15.01.2020 are quashed.

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(Alok Mathur, J.)

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Order Date :- 6.3.2024

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Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Rameshwar Prasad Soni v. Commissioner Devi Patan Mandal Gonda and Ors.

Case brief

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Rameshwar Prasad Soni v. Commissioner Devi Patan Mandal Gonda and Ors.

Case brief

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