Ashok Kumar vs State Of U.P.& Others
2012 Latest Caselaw 3599 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 

 
Case :- WRIT - C No. - 9368 of 2000
 

 
Petitioner :- Ashok Kumar
 
Respondent :- State Of U.P.& Others
 
Petitioner Counsel :- Anupam Kulshreshtha
 
Respondent Counsel :- C.S.C.,V.K.Birla
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order dated 18.1.2000 passed by the Commissioner, Controlling Authority under the U.P. Regulation of Building Operation Act, 1958 and the revisional order dated 3.2.2000 passed by the Special Secretary, State Government.

The case of the petitioner, in brief, is that in respect of plot no. 117 situated in Mauza Arazi Imlag (Fatehpur Sikri), Agra, there was a dispute between the petitioner and the Nagar Palika with regard to the title of the land in question. The Prescribed Authority, Controlling Area Dayal Bagh, Agra by his order dated 18.7.1995 held that the petitioner was the rightful title holder of the land in question and that the land in dispute was being used by the Nagar Palika for tying impounded cattle.

After the order dated 18.7.1995 sanction had been granted to the petitioner with regard to the map for which an application has been made by the petitioner before the Prescribed Authority.

Aggrieved by the said order the Nagar Palika, Fatehpur filed an appeal before the Commissioner under the U.P. Regulation of Building Operation Act who by the impugned order dated 18.1.2000 held that there was a dispute with regard to the title of the plot in question and that the number of the plot in question had not been mentioned in the order of the Commissioner and therefore, no map for construction could be sanctioned over the plot of which no number was given. Accordingly, he allowed the appeal filed by the Nagar Palika and set aside the order of the Prescribed Authority dated 18.7.1995.

Aggrieved by the order dated 18.1.2000 the petitioner preferred a revision before the State Government under the provisions of Section 15-A of the U.P. Regulation of Building Operation Act, 1958. The revisional authority by the impugned order dated 3.2.2000 has rejected the revision on the ground that there was a dispute between the Municipal Board, Fatehpur Sikri and the petitioner with regard to the title and against the order of the Civil Court passed in the title suit initiated by the petitioner, a second appeal filed by the Nagar Palika, was pending in the High Court.

I have heard Shri Anupam Kulshreshtha, learned counsel for the petitioner and Shri Mata Prasad, learned Addl. Chief Standing Counsel, appearing for the State respondents.

From a perusal of the impugned order as well as the documentary material available on record, it is seen that one Raghuveer Dayal who is stated to be the grandfather of the petitioner had filed suit no. 236 of 1961 which was decreed against the Municipal Board on 15.4.1968. Aggrieved by the said order, the Municipal Board filed an appeal which was dismissed on 17.7.1989. Against this order the Municipal Board preferred a second appeal no. (D) 46 of 1990 before the High Court. This second appeal is stated to be still pending as a defective appeal and the defect has not been removed since 1990.

In the meantime, the petitioner applied before the Prescribed Authority for sanction of map for making construction over the land in question. The Prescribed Authority after considering the entire fact situation of the case held that the petitioner was the owner of the plot in question being plot no. 117 and that the Nagar Palika Parishad, Fatehpur Sikri was utilizing the said plot for tying impounded cattle and on the basis of this finding the Prescribed Authority by his order dated 18.7.95 sanctioned the map of the petitioner and held the petitioner to be the owner of the land in question.

Aggrieved by the order dated 18.7.1995, the Nagar Palika Parishad filed an appeal before the Commissioner, Controlling Authority who by the impugned order dated 18.1.2000 held that the order of the Prescribed Authority was illegal inasmuch as sanction had been granted over a plot of which no number was given and there was a civil suit with regard to title between the Nagar Palika Parishad and the petitioner and that a second appeal was also pending in the High Court. Accordingly the appeal filed by the Nagar Palika Parishad was allowed.

Aggrieved by the said order the petitioner filed a revision before the State Government under section 15-A of the Regulation of Building Operation Act, 1958 which too was rejected on similar ground that with regard to title there was a dispute between the parties and that the appeal of the Nagar Palika Parishad is pending before the High Court.

At the time of admission of this petition, this Court had passed an interim order on 22.5.2000. The relevant extract of the said order reads as under:

"In the meantime existing constructions which were sanctioned and approved by order 18.7.1995 shall not be demolished. Any other portion which is not covered by the sanction plan dated 18.7.1995 shall be outside the sweep of this order and may be liable to be demolished."

From a perusal of the impugned order as well as the order of the Prescribed Authority it is seen that the plot for which the petitioner has sought sanction of map has duly been mentioned as plot no. 117 and the Prescribed Authority has also recorded a finding that the petitioner was the title holder of the plot in question and the land has unauthorizedly been used by the Nagar Palika Parishad, Fatehpur Sikri for keeping impounded cattle and accordingly the map had been sanctioned. In terms of the sanctioned map, the petitioner has also made construction over the land in question. Therefore, the finding recorded by the appellate authority i.e. the Commissioner that the map could not have been sanctioned since no plot number has been mentioned is on the face of it an erroneous finding and contrary to the specific mention of plot No.117 contained in the order of the Prescribed Authority dated 18.7.1995.

On the second question with regard to the pendency of the second appeal of the Nagar Palika Parishad in the High Court, both the Commissioner as well as the State Government in their impugned orders have erred in rejecting the sanction of map of the petitioner and set aside the order of the Prescribed Authority simply on the ground that with regard to the dispute regarding title of the land in question a second appeal of the Nagar Palika Parishad was pending in the High Court.

As already noted above, from a perusal of the record of the case, the second appeal was a defective appeal and the said defect has not been removed so far and the same is still pending as defective. The respondents have not been able to show as to what steps have been taken to remove the defect and whether the said Second Appeal has been registered and given a regular number.

Be that as it may, the order of the prescribed authority cannot be rejected simply on the ground that a second appeal has been filed by the Nagar Palika Parishad, which, as evident from the record, the Nagar Palika Parishad is not making any effort to get decided and the same is pending since 1990. Also the finding recorded by the Commissioner that the plot number has not been mentioned in the order of the Prescribed Authority is actually an erroneous finding as the plot number has been clearly mentioned as plot no. 117 and the Prescribed Authority, on the basis of the decree of the civil court in the civil suit initiated by Raghuveer Dayal has recorded a finding that the petitioner is the title holder of the land in question. Unless that finding is set aside by the court of competent jurisdiction, the Nagar Palika cannot ignore the said decree of the civil court.

In the circumstances the impugned orders dated 18.1.2000 and 3.2.2000 are absolutely illegal and contrary to the facts on record and are liable to be quashed.

For the aforesaid reasons, the writ petition is allowed and the impugned orders dated 18.1.2000 and 3.2.2000 are quashed.

It is made, however, clear that this order will be subject to any decision which may ultimately be passed in the second appeal (D) No. 46 of 1990, filed by the Nagar Palika Parishad, Fatehpur Sikri, Agra, pending before this Court.

Order Date :- 21.8.2012

o.k.