Shirish Chandra & 9 Others vs State Of U.P. & 6 Others
2017 Latest Caselaw 539 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Chief Justice's Court                                                          AFR
 

 
Case :- WRIT - C No. - 20283 of 2017
 

 
Petitioner :- Shirish Chandra & 9 Others
 
Respondent :- State Of U.P. & 6 Others
 
Counsel for Petitioner :- Ashish Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Ashok K Pandey
 

 
Hon'ble Dilip B. Bhosale,Chief Justice
 
Hon'ble Yashwant Varma,J.

Heard Mr. Ashish Kumar Srivastava, learned counsel for the petitioners, Mrs. Subhash Rathi, learned Additional Chief Standing Counsel for respondents 1, 2 4, 5 and 6 and Mr. Ashok Kumar Pandey, learned counsel for respondent No.3.

This writ petition challenges the order/letter dated 19.4.2017 issued by the Additional City Magistrate-IV, Varanasi. By this order/letter, the City Magistrate has requested the Station House Officer, Varanasi to provide police force for carrying out demolition of premises S-9/92, Khajuri Pandeypur, Varanasi, which is the subject matter of the instant writ petition, within seven days from the date of the said letter. It further appears that the City Magistrate has issued this letter on the basis of the order dated 16.4.2017 issued by the District Magistrate, Varanasi. In view thereof, on the last occasion, we had directed the learned Standing Counsel to produce a copy of the order dated 16.4.2017 passed by the District Magistrate. She has placed an application dated 16.4.2017 made by the respondent No.7, who claims to be the landlady of the premises in question, on which the District Magistrate passed the order dated 16.4.2017, directing the City Magistrate to issue orders of demolition.

From a perusal of the application made by respondent No. 7, it is apparent that she made the application seeking demolition on the grounds as provided for in Section 331 of the Uttar Pradesh Municipal Corporations Act, 1959 (for short, 'the Act'). We have perused Section 331 of the Act. From the scheme of this provision, it appears to us that the District Magistrate has absolutely no role to play. If an application is made by a landlord/landlady in respect of any structure, which, according to the landlord or the landlady, is in a ruinous condition or likely to fall, or in any way dangerous to any person, occupier to seek its demolition, the powers are vested in the Municipal Commissioner and even the Municipal Commissioner under this provision is expected to issue a notice to the owner or occupier of such structure before passing an order of demolition. None of the counsel for the respondents could place any material on record to show that such a procedure was followed by the Municipal Commissioner. Our attention was drawn to the notice dated 16.7.2016 issued by the Zonal Officer, Nagar Nigam, Varanasi under Section 331 (1)(2) of the said Act. We, however, were informed that the concerned authorities have not taken the notice to its logical conclusion till this date. We were also informed that they have not taken any further steps, after issuing such notice dated 16.7.2016. Learned counsel appearing for the Municipal Corporation further submits that if the concerned authorities decide to proceed further in pursuance of the said notice, they shall follow the due procedure. His statement is recorded and accepted.

Counsel for the petitioners has drawn our attention to the orders passed by this Court dated 23.02.2011 in Writ-C No.9659 of 2003. It appears that the petitioners had filed the said writ petition for a mandamus, directing the respondents not to demolish their shops standing on Plot No.793 and Premises No. S-9/92 Pandeypur Khajuri, Varanasi City. That writ petition was disposed of with the following observations:

"In view of the aforesaid, we are of the view that the writ petition being pending in this Court for about five years and petitioners' shop were stopped to be demolished, the ends of justice will be served in observing that before taking any action for demolition the appropriate measurement be carried out by the respondent nos. 2, 3 and 4 to find out the extent of encroachment on the public road and only thereafter action, if any, shall be taken."

Thereafter, a contempt application was filed by the petitioners bearing Contempt Application (Civil) No.6298 of 2016. The contempt application also came to be disposed of with the following order:

"Instruction filed today is taken on record.

Sri Vivek Verma, learned counsel for the Nagar Nigam, Varanasi, upon instruction, would submit that the authorities of the Nagar Nigam have initiated proceedings under Section 331(1)(2) of the U.P. Municipal Corporation, Act, 1959 and no proceedings have been initiated for removing the encroachment as alleged by the applicant.

It is submitted that in the event of such a proceedings being initiated the occupier of the premises shall be put to notice.

In view of the above statement, the contempt petition is disposed of."

Having regard to the order passed by this Court dated 23.2.2011 and the impugned notice/letter dated 19.4.2017, it is clear that these two proceedings are independent. In other words, the order impugned in the present writ petition is not a consequential order passed in pursuance of the directions issued by this Court vide order dated 23.2.2011. In the circumstances, we make it clear that if the petitioners have made any encroachment, and if it is on the road, the concerned authorities may take appropriate action in accordance with law for removal of the encroachment.

Insofar as the impugned order/letter dated 19.4.2017 is concerned, since no procedure, as contemplated under Section 331 of the Act, was followed/complied, it deserves to be set aside. The order is, accordingly, set aside. This shall not preclude the concerned authorities from initiating the action under Section 331 of the Act, if they so desire and are so advised.

Before parting, we observe that, if an application is made by the landlord or the landlady for seeking action, as contemplated by Section 331 of the Act, the Municipal Commissioner shall constitute a Committee consisting of an architect and the Executive Engineer concerned which shall verify the correctness of the statement made by the landlord or the landlady in their application seeking action under this provision and shall act on the same only after receiving a report from the said Committee. Whenever a notice is issued to the occupiers under Section 331 of the Act, the concerned authority shall also serve a copy of the report along with the notice before taking any further action under the said provision. We are of the considered view that these safeguards are necessary in order to ensure that the provisions of section 331 are not misused. We are further of the view that the procedure formulated hereinabove must bind and be replicated in all Municipal Corporations and bodies constituted under the U.P. Municipal Corporations Act, 1959 throughout the State. We accordingly direct Mrs. Subhash Rathi the learned Standing Counsel to cause a copy of this order to be placed before the Principal Secretary Nagar Vikas Government of Uttar Pradesh for issuance of appropriate circulars/directives to all municipal bodies ensuring that the above procedure is duly complied and followed in proceedings under Section 331 of the Act.

While parting, insofar as the present case is concerned, we provide that it shall be open to the respondent No.7 to follow the due procedure as contemplated under Section 331, if she so desires and is so advised, for demolition of the structure, which, according to her, is in a dilapidated condition.

While passing this order, we shall not be understood to have made any observations against respondent No.7 or curtailed her rights under the provisions of the Act, seeking demolition of the structure in question.

Order Date :- 12.5.2017

VMA

(Dilip B Bhosale, CJ)

(Yashwant Varma, J)