Allahabad High Court
Smt. Ina Varshney & 3 Others vs State Of U.P. & 3 Others on 22 August, 2014
Bench: Amreshwar Pratap Sahi, Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 21
Case :- WRIT - C No. - 43918 of 2014
Petitioner :- Smt. Ina Varshney & 3 Others
Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh
Counsel for Respondent :- C.S.C.,B. Dayal
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioners, learned Standing Counsel for the State and Sri B. Dayal, learned counsel appears for the Meerut Development Authority.
The present petition has been filed challenging the order dated 21.5.2014, passed by the Vice-Chairman, Meerut Development Authority, Meerut rejecting the representation of the petitioner regarding sanction of map.
At the very outset, Sri B. Dayal, learned counsel for the Development Authority, takes a preliminary objection that the petitioners have a statutory remedy of filing an appeal and as such the petition is liable to be dismissed on the ground of alternative remedy.
In reply to the aforesaid prelimianry objection, learned counsel for the petitioners has placed reliance on various decisions of the Hon'ble Apex Court to assert that alternative remedy is not an absolute bar and in case of violation of principles of natural justice, the petitioner shall not be relegated to the alternative remedy. He has placed reliance on the decision of the Apex Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, 1998 (8) SCC 1 and in the case of Secretary and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity and others, 2010 (3) SCC 732. He has further placed reliance on the decision of this Court in the case of Mohammad Aslam vs. Rampur Development Authority through Secretary and another, 2009 (1) AWC 566 wherein in paragraph 8 of the judgement, it has been held as under:
We are of the considered opinion that under sub-section(9) of Section 15 it is mandatory for the Development Authority to afford an opportunity of hearing to a person, whose site plan has been earlier approved, disclosing the grounds on which it is proposed to be cancelled, which it is proposed to be cancelled. We, however, find that ground mentioned for cancellation of the site plan, earlier approved in favour of the petitioner, under the impugned order is squarely covered by the conditions mentioned in Section 15 and therefore the provisions of the said section are squarely attracted in the facts of the present case.
The contention of learned counsel for the petitioners is that in view of the order dated 11.2.2014 passed by this Court in Civil Misc. Writ Petition No. 8313 of 2014, a representation was submitted before the Vice-Chairman, Meerut Development Authority, Meerut, respondent no. 3 and the same has been decided vide order dated 21.5.2014 on the basis of some inspection report dated 20.5.2014 of a joint team of the Development Authority and the Tehsil, illegally holding that the construction of the Map No. 1548 of 2013 falls in the area acquired by the proposal of Development Authority.
The submission is that this order has been passed in violation of principles of natural justice solely on the basis of an ex parte joint inspection report dated 20.5.2014 that was never made known to the petitioner He further submits that even on demand the aforesaid joint inspection report dated 20.5.2014 was not supplied to the petitioners.
We are satisfied that the aforesaid order dated 21.11.2014 has been passed without affording any opportunity of hearing to the petitioners and without any opportunity to rebut the report dated 20.5.2014. The report was obtained a day earlier and the order was passed the following day without information to the petitioner.
In view of the aforesaid, we are not inclined to relegate the petitioners to the alternative remedy and in the facts and circumstances of the case, the aforesaid order dated 21.5.2014 is hereby set aside leaving it open to the Vice-Chairman, Meerut Development Authority, Meerut to pass a fresh order after affording opportunity of hearing to the petitioners preferably within a period of three months, from the date of production of a certified copy of this order.
It is made clear that we have not expressed our opinion on the merits of the claim of the petitioners and fresh orders will be passed independently by the authority.
The writ petition is allowed with the observations made hereinabove.
Order Date :- 22.8.2014
Puspendra
