Arvind Kumar Mittal vs Bulandshahr Development ...
2019 Latest Caselaw 4297 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
                                          Reserved on 24.1.2019
 
				                           Delivered on 9.5.2019                                      								
 
Case :- SECOND APPEAL No. - 1358 of 2018
 
Appellant :- Arvind Kumar Mittal
 
Respondent :- Bulandshahr Development Authority And Another
 
Counsel for Appellant :- Vijay Prakash Mishra
 
Counsel for Respondent :- Kuldeep Singh Chauhan
 

 
Hon'ble Rajiv Joshi,J.

1. Heard Sri Vijay Prakash Mishra, learned counsel for the appellant and Sri Kuldeept Singh Chauhan, learned counsel for the respondents.

2. The present second appeal under Section 100 C.P.C. has been filed by the plaintiff-appellant impleading the Bulandshahr Development Authority through its Secretary and Prescribed Authority, Building Control System Bulandshahr as a defendant-respondent nos 1 and 2, respectively challenging the order dated 7.9.2018 passed by the Additional District Judge, Court no. 10, Bulandshahr in Civil Appeal No. 37 of 2013 (Arvind Kumar Mittal Vs. Bulandshahr Development Authority & Ors.) whereby the appeal filed by the plaintiff-appellant was dismissed affirming the order dated 30.3.2011 passed by the Civil Judge (Senior Division), Bulandshahr in Original Suit No. 148 of 2011 allowing the application No. 60-ga for rejection of plaint under Order 7 Rule 11 (d) as the suit is barred by Section 27 of Uttar Pradesh Urban Planning and Development Act, 1973 ( for short " the Act of 1973").

3. The brief facts giving rise to the present appeal are thus:

4. The plaintiff-appellant filed a suit for permanent injunction before the Civil Judge (Sr. Division) Bulandshahr, restraining the defendants from demolishing the construction over the land of an area of 20 square metre and further for declaring the notice dated 23.10.2010 issued by the Bulandshahr Development Authority as well as demolition order dated 18.11.2010 as null and void.

5. The suit was filed on the ground that the plaintiff-appellant along with one Omprakash and Pradeep Kumar are the owners of the building situated at Mandi Fatehganj, District-Bulanshahr. The ground floor of the said building was being used by them for the business purpose while the first floor for residential purposes. As the building was about 70 years old and was in a dilapidated condition, the plaintiff-appellant got repaired the roof of the ground floor area only but the defendants issued a notice on 23.10.2010 under Section 26-A (4) read with Section 28 (1) of the Act of 1973, directing the plaintiff-appellant to appear and explain as the construction raised by him over 20 square meter was without permission/approval of the Development Authority.

6. Subsequently, the order was passed by the Vice Chairman of the Bulandshahar Development Authority directing the plaintiff-appellant to remove the construction over an area of 20 square meters on the ground floor as well as first floor.

7. It was further stated in the plaint that the plaintiff-appellant has only got repaired the roof and no new construction was raised and therefore, there was no necessity for obtaining any permission. On these grounds, the suit was filed for restraining the defendant-respondents from demolishing the disputed part of the building.

8. During the pendency of the suit, an application 60-ga was filed from the side of the defendant-respondents under Order 7 Rule 11 (d) for rejection of the plaint on the ground of suit being barred by Section 27 of the Act of 1973. The plaintiff filed an objection to the said application. Ultimately the trial court vide order dated 30.3.2011 rejected the plaint under Order 7 Rule 11 (d) of C.P.C. holding the Suit as barred by Section 27 of the Act.

9. Against the order passed by the trial court dated 30.3.2011 rejecting the plaint under Order 7 Rule 11 (d), a revision was filed which was later on converted into a Civil Appeal (registered as Civil Appeal No. 37 of 2013) which was dismissed by the Additional District Judge vide impugned judgment dated 7.9.2018. The order dated 30.3.2011 passed by the trial court rejecting the plaint of the plaintiff under Order 7 Rule 11 (d) as well as judgment and order of the appellate court dated 7.9.2018 are impugned in the present appeal.

10. The only point that arises for determination in this appeal is whether the plaint in Original Suit No. 148 of 2011 could be rejected under Order 7 Rule 11 (d) on the ground of the suit being barred by Section 27 of the Act of 1973.

11. Contention of learned counsel for the plaintiff-appellant is that the plaintiff-appellant has only repaired the roof and as no new construction/structure has been added therefore, no permission was required for that purpose in view of Section 52 of the Act and in such circumstances, the plaint cannot be rejected under Order 7 Rule 11 (d).

12. On the other hand, learned counsel for the respondent supported the view has taken by the both the courts below and submitted that from a bare reading of the provision of Sections 27 & 37 of the Act, it is apparent that suit is specifically barred. The plaintiff has to challenge the order of Vice Chairman, before the appellate authority and the detailed procedure in this regard has been provided under Section 27 of the Act.

12. I have considered the rival submissions as raised by the parties and perused the record.

13. Section 27 of the Act deals with the order of demolition of building which reads as under:

"27. Order of demolition of building:-

(1) Where any development has been commenced or is being carried on or has been completed in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or contravention of any conditions subject to which such permission, approval or sanction has been granted, in relation to the development area, then, without prejudice to the provisions of Section 26, 1[the Vice-Chairman or any officer of the Authority empowered by him in that behalf] may make an order directing that such development shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance the development has been commenced or is being carried out or has been completed, within such period not being less than fifteen days and more than forty days from the date on which a copy of the order of removal, with a brief statement of the reasons therefore, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, 2[the Vice-Chairman or such officer] may remove or cause to be removed the development, and the expenses of such removal as certified by 3[the Vice- Chairman or such officer] shall be recoverable from the owner of the person at whose instance the development was commenced or was being carried out or completed as arrears of land revenue and no suit shall lie in the Civil Court for recovery of such expenses:

Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made.

(2) Any person aggrieved by an order under Sub-section (1) may appeal to the (Chairman) against that order within thirty days from the date thereof and the[Chairman] may after hearing the parties to the appeal either allow or dismiss the appeal or may reverse or vary any part of the order.

(3)The [Chairman] may stay the execution of an order against which an appeal has been filed before it under Sub-section(2).

(4)The decision of the [Chairman] on the appeal and, subject only to such decision, the order under Sub-section (1), shall be final and shall not be questioned in any Court.

(5)The provisions of this section shall be in addition to, not in derogation of, any other provision relating to demolition of building contained in any other law for the time being In force."

14. Section 37 deals with the finality of the decision of the Chairman on an appeal which is quoted as under:

"37. Finality of decision.-[Except as provided in Section 41, every decision] of the Chairman on appeal, and subject only to any decision on appeal (if it lies and is preferred), the order of the Vice-Chairman or other officer under Section 15, or Section 27, shall be final and shall not be questioned in any Court]."

15. Section 52 of the Act deals with the savings certain activities which excluded the provisions of the Act which is quoted as under:

52. Savings.-Nothing in this Act shall apply to-

(a) the carrying out of works for the maintenance, improvement or other alterations of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building;

(b) the carrying out by any local authority or by any department of Government of any works for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes cables or other apparatus including the breaking open of any street or other land for that purpose;

(c)the operational construction, (including maintenance, development and new construction) by or on behalf of a department of the Central Government;

(d) the erection of a building, not being dwelling house, if such building is required for the purposes subservient to agriculture;

(e) the excavations (including wells) made in the ordinary course of agricultural operations; and

(f) the construction of unmetalled road intended to give access to land solely for agricultural purposes.

16. From the bare reading of Section 27 (2), it is ample clear that the order passed by the Vice Chairman, Development Authority under Section 21 (1) of the Act is appellable before the Chairman, Development Authority/ the Divisional Commissioner, i.e. the Commissioner Bulandshahar Division Bulandshahar. Hence, in case plaintiff had any grievance, he had a statutory remedy available to him to challenge the demolition order dated 18.11.2010 before the Chairman/Commissioner.

17. Section 27 (4) of the Act provides that the order passed by the Chairman shall be final. Therefore, the proper remedy available to the plaintiff-appellant is to approach the competent authority as per Section 27 of the Act. Even otherwise the order passed by the Competent Authority under the Act has attained finality in view of Section 37 of the Act which provides that it shall not be questioned in any Court. Therefore, it is not open to the plaintiff-appellant to challenge the notice for demolition or the order of demolition directly or indirectly before the civil court as the suit in this regard is not maintainable and clearly barred by provision of Section 27 as well as Section 37 of the Act.

18. So far as the applicability of Section 52 of the Act, is concerned, suffice it to say that no such point has been raised by the plaintiff before the court below.

19. Even otherwise, since the order of demolition of building has been passed by the Vice Chairman, Development Authority after proper opportunity to the plaintiff-appellant and such order can only be called in question by filing the appeal in view of Section 27 and the same cannot be questioned before the civil court in view of Section 27(4) and Section 37 of the Act, therefore, the civil court is not capable of taking different view in the matter than as taken by the competent authority despite the provision contained in Section 52 of the Act since the civil court is not competent to examine correctness or illegality of the decision passed by the Chairman, Development Authority under Section 27 (1) of the Act otherwise the very object and purpose of enacting the Act of 1973 would be defeated.

20. The aforesaid view has been taken by a Single Bench of this Court in the case of Shyam Sunder Agarwal Vs. State of U.P. & Ors reported in (2009) 3 AWC 2209 All.

21. Learned counsel for the plaintiff-appellant has relied upon the judgment of this Court in Allahabad Development Authority & Ors Vs. Ram Prakash Pandey & Ors., Reported in (2002)1 AWC 666 All, particularly paragraph nos. 8,9,10,11 which read as under:

"8. I have considered the law laid down in all these cases. They are on different points and have no direct application in the facts of the present case. It may be also mentioned that in the State of West Bengal, the Apex Court has held that "where the statute gives a finality to the orders of the special Tribunals in the matter of levy of tax, the civil court's jurisdiction may be held to be excluded, if there is adequate remedy to do what the civil court would normally do in a suit". Therefore, in the light of this observation, it is to be seen whether the jurisdiction of the civil court is barred in the present case.

9. Learned counsel for the respondent has also referred to the decision in Dhulabhai v. State of Madhya Pradesh. MANU/SC0157/1968. In this case, the provisions of Section 9, C.P.C. were exhaustively considered and the principles regarding exclusion of Jurisdiction of the civil court were laid down. Principle No. 1 alone is important in the present case which is as follows:

"(1) Where the statute gives a finality to the orders of the special Tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure."

10. This provides that the jurisdiction is barred only if there is adequate remedy to do what the civil court would normally do in a suit. This was also the view expressed in the case of State of West Bengal (supra). In view of this, it is to be seen whether the jurisdiction of the civil court is excluded.

11.Section 27provides for service of notice for the demolition of the building. However, it is contended by the respondent that no notice was served. No procedure has been prescribed nor there is any provision for producing evidence. Therefore, the remedy provided under Section 27of the Act cannot be said to be an adequate remedy so as to infer that the jurisdiction of the civil court is barred."

22. The judgment in the case of Allahabad Development Authority (supra) is quietly distinguishable on the facts as in that case the show cause notice had not been served prior to passing of the demolition order, and therefore, this Court held that the remedy provided under Section 27 of the Act cannot said be to be an adequate remedy so as to infer that jurisdiction of the civil court is barred.

23. In the present case, there is no dispute that prior to the passing of demolition order, show cause notice was served on the plaintiff-appellant and the plaintiff-appellant even challenged the validity of show cause notice and demolition order claiming the relief that both of them be declared null and void and even otherwise provisions as contained in Section 27 as well as Section 37 have not been considered by the judgment in Allahabad Development (supra) case relied on by the counsel for the appellant. The said judgment in fact even otherwise appears to be per inqurium.

24. In these circumstances, question as so framed by the counsel for the plaintiff-appellant is decided in negative by holding that the plaint of the plaintiff-appellant has rightly been rejected by the courts below under Order 7 Rule 11 (d) of C.P.C. as the suit is clearly barred by Section 27 of the Act.

25. The present appeal is devoid of merits and is liable to be dismissed. It is accordingly dismissed. No order as to costs.

Order Date :- 9.5.2019

Akbar