Disposed

Ashish Shukla and Another v. U.P. Awas Vikas Parishad Thru. Chairman Lko. and 3 Others

Allahabad HC6 Sept 2024WRIC/7698/2024

Case brief

AI extract

What is this about?

The High Court allowed a correction in the petition names and listed the matter afresh. The court restrained the respondents from taking coercive action while the petitioners respond to the show-cause notice regarding alleged unauthorized commercial use of residential land.

What did the court decide?

Restrained respondents from taking any coercive action against the petitioners until the next date of listing.

Ashish Shukla and Another vs U.P. Awas Vikas Parishad… — Land Acquisition | Allahabad HC (2024)

¶1

Court No. - 3 Case :- WRIT - C No. - 7698 of 2024 Petitioner :- Ashish Shukla And Another Respondent :- U.P. Awas Vikas Parishad Thru. Chairman Lko. And 3 Others

¶2

Counsel for Petitioner :- Anurag Narain Srivastava,Prashant Chaurasia,Samarth Saxena,Shailendra Kumar Misra,Vartika Pandey Counsel for Respondent :- Puneet Chandra

¶3

Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Brij Raj Singh,J.

¶4

Heard learned counsel for the petitioners and Shri Puneet Chandra, learned counsel for the respondents.

¶5

There is an oral request made by the counsel for the petitioner for making certain corrections in paragraph 8 of the writ petition. Instead of respondent no. 3 and respondent no. 5, the petitioner wishes to add CMO., Lakhimpur Kheri.

¶6

The oral request so made is allowed.

¶7

The petitioner shall make the necessary corrections during the course of the day.

¶8

It is the case of the petitioners that both the petitioners are doctors. They are husband and wife and practiced as General Physician, in District Lakhimpur Kheri. Since both the petitioners are M.D. in Radiology, they have installed X- ray machine and Ultrasound machine in their clinic. They conduct diagnostic tests of the patients, if required, in their own clinic. They have purchased residential plot comprising of two adjoining Plots i.e. 672 and 673 in Rajnagar, Yojana, Lakhimpur Kheri and their maps were sanctioned from U.P. Awas Vikas Parishad. The petitioners have constructed their residential house over the land of two plots in the year 2022. The petitioners operate their Clinic in about 700 sq.ft. out of total area of 4000 sq.ft on the ground floor. They do no admit any patients and do not have any Operation Theatre or Wards in their Clinic, only conduct diagnostic tests on patients as part of the consultation process. They have also applied to the Chief Medical Officer for permission to conduct such tests. Their registration have been renewed from time to time.

¶9

On 05.08.2024, the respondent no.3, the Executive Engineer, Awas Evam Vikas Parishad, Nirman Khand, Indira Nagar, Lucknow saying that the petitioners are carrying out commercial activities by running a Diagnostic Centre which should cease such activities immediately or else legal action would be taken against them. Again, a notice has been issued by respondent no.3 on 09.08.2024 saying that the petitioners are raising illegal constructions and had directed the petitioners to stop such constructions.

¶10

The petitioners have submitted their reply to the said notices mentioning the correct facts. It has been submitted that as is evident from the notice dated 05.08.2024 and 09.08.2024 respectively, the respondents are themselves not sure as to under which provisions of the Act, 1965 such notices can be issued by them. It has been submitted by learned counsel for the petitioners that the Act, 1965 does not prescribe any procedure to take action for commercial use of land which has been designated for residential purposes. No Rules have been framed by U.P. Awas Evam Vikas Parishad, in this regard also.

¶11

The petitioners having set-up a Clinic, which they are entitled to do so at their residence, are utilizing the Diagnostic Machine set up by them only for treating their patients.

¶12

Learned counsel appearing for U.P. Awas Evam Vikas Parishad has produced before this Court another notice/letter dated 28.08.2024 issued to the petitioners saying that they are using their premises for commercial purposes and they should stop doing so immediately and to explain to the authority on or before 11.09.2024 by submitting a reply as to why their constructions be not demolished.

¶13

It has been submitted by Shri Puneet Chandra, that a Division Bench of this Court in Writ Petition No.3717 (M/B) of 2004 (Anju Grover vs. State of U.P.) decided on 19.01.2017 has taken into account the delegation of power under section 51 (2) of U.P. Urban Planning and Development Act, 1973 in favour of Awas Vikas Parishad, which is local authority defined under Section (3) of the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965. The Court had considered the Circular issued by Awas Evam Vikas Parishad dated 04.02.2004, issued in pursuance of the delegation done by Vice Chairman, Lucknow Development Authority dated 01.12.2003, of his power to issue notice under Section 28-A and Section 51 (2) of Act, 1973. The Awas Evam Vikas Parishad in exercise of such power can seal a premises and also issue notice for removal of unauthorised constructions of the property.

¶14

Learned counsel for the petitioner submits that since there is no local authority/Development Authority under 1973 Act in Lakhimpur Kheri and therefore, there cannot be any delegation under 1973 Act by Vice Chairman of the Development Authority of the town concerned in favour of the Awas Evam Vikas Parishad. The Lucknow Development Authority,, Vice Chairman cannot delegate power to an Executive Engineer of a local authority acting in a different forum away from the territorial limits of the city of Lucknow.

¶15

Prima facie., the petitioner has an arguable case. The matters requires consideration.

¶16

List on 23.09.2024 as fresh.

¶17

Till the next date of listing, the respondents are restrained from taking any coercive action against the petitioners. The petitioners may, however, submit their reply to the show cause notice issued to them on 28.08.2024 to the authority concerned. The authority may continue the proceedings but may not pass any final orders.

¶18

Order Date :- 6.9.2024 Pks

¶19

Digitally signed by :- POOJA SETH High Court of Judicature at Allahabad, Lucknow Bench

Ashish Shukla and Another v. U.P. Awas Vikas Parishad Thru. Chairman Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

Ashish Shukla and Another v. U.P. Awas Vikas Parishad Thru. Chairman Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Ghanshyam vs State of U.P. Thru. Prin. Secy. Revenue Lko and 9 Others

Om Hari Singh vs State of U.P. Thru. Addl. Chief / Prin. Secy. Deptt. of Urban Deptt. Lko. and 6 Others

Mithlesh Singh vs State of U.P. Thru. Addl. Chief Secy. Home Lko and 3 Others

Kamlesh Prasad Dubey vs State of U.P. Thru. Prin. Secy. Revenue Deptt. Lko and Another

C/M Waqf Vari Taala Thru. Mutwali / Secy. Asif Iqbal vs State of U.P. Thru. Addl. Chief Secy. Deptt. of Revenue and 5 Others

Ramu vs State of U.P. Thru. Prin. Secy. Home Deptt. of Civil Secretariats and 2 Others