Smt. Sita Devi vs State Of U.P. And 2 Others
2021 Latest Caselaw 11145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 46
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 7446 of 2021
 

 
Petitioner :- Smt. Sita Devi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Chandra Shekher Singh,Vinay Singh
 
Counsel for Respondent :- G.A.,Brijendra Kumar
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Gautam Chowdhary,J.

1. On oral request of learned counsel for the petitioner, Principal Secretary Urban Planning and Development, Government of Uttar Pradesh, Lucknow, is allowed to be impleaded as respondent no. 4.

2. Necessary correction in the array of parties be carried out during the course of the day.

3. Heard Sri Chandra Shekher Singh, learned counsel for the petitioner, Sri Patanjali Mishra, learned A.G.A. for respondent nos. 1 and 2 and Sri V.K. Ojha, learned counsel for respondent no. 3.

4. This writ petition has been filed praying for the following reliefs:-

"i. To issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 08.03.2021 registered against the petitioner as Case Crime No. 0219 of 2021, P.S. Naini, Prayagraj, under section 447 I.P.C. and 28(1) U.P. Urban Planning and Development Act, 1973, (Annexure No. 1 to this Writ Petition).

ii. To issue a writ, order or direction in the nature of mandamus commanding the Respondent no. 4 not to arrest the Petitioner during the pendency of this writ petition."

5. The petitioner is the wife of a retired army personnel. It appears that in the year 2013-2014, she started constructions over the plot of 153.36 square meters being part of Arazi No. 107/1, Village- Chaka, Tehsil- Karchana, District- Allahabad, which fall within regulatory area of the respondent no. 3, i.e., Prayagraj Development Authority, District- Prayagraj. However, she received a notice dated 27.03.2014, issued by the Zonal Officer of the respondent no. 3, requiring her to show cause as to how she is raising construction without obtaining permission from the respondent no. 3. It appears that, thereafter, the petitioner submitted a compounding building plan vide application dated 21.08.2017 and also deposited the requisite fees vide receipt no. 1829, book no. 219, dated 21.08.2017, Rs. 1,880/-. Again a notice dated 26.08.2017 was issued by the Zonal Officer, Allahabad Development Authority, Allahabad, to the petitioner, which is reproduced below:-

"प्रेषक,

जोनल अधिकारी,

इलाहाबाद विकास प्राधिकरण,

इलाहाबाद।

सेवा में,

श्रीमती सीता देवी,

पत्नी श्री राम लाल सरोज,

निवासिनी- ग्राम अर्जुनपुर, तहसील पट्टी,

जिला प्रतापगढ़।

पत्रांकः- ०7/जोन-4/उप०-4सी/शमन/वि०प्रा०/2०17-18 दिनांक 26.०8.2०17

विषयः- आफ आराजी संख्या 1०7/ए, मौजा चाका अरैल करछना, इलाहाबाद में दाखिल शमन मानचित्र के सम्बन्ध में।

महोदय,

उपर्युक्त विषयक के सम्बन्ध में अवगत कराना है कि आप द्वारा आराजी संख्या 1०7, मौजा चाका अरैल, करछना, इलाहाबाद का शमन मानचित्र स्वीकृति हेतु दाखिल किया गया है। मानचित्र मे दर्शित Key Plan में स्थल की दूरी स्पष्ट नहीं हो पार रही है। Key Plan में पुराना यमुना ब्रिज रीवा रोड एंव नया यमुना ब्रिज रोड जहां पर मिलती है, उसके क्रासिंग से रीवा रोड की दूरी एंव रीवा रोड से स्थल की दूरी प्रमुख Land Mark को दिखाते हुए अंकित कराना होगा, जिससे भू- उपयोग आख्या प्राप्त करना सम्भव होगा।

अतः आप पत्र प्राप्ति के एक सप्ताह के भीतर उपरोक्तानुसार शमन मानचित्र में संशोधन करना सुनिश्चित करें।

भवदीय,

ह० अप०

जोनल अधिकारी,

इलाहाबाद विकास प्राधिकरण,

इलाहाबाद।"

6. The aforesaid notice was allegedly sent by the Zonal Officer to the petitioner at the address "Village-Arjanpur, Tehsil- Patti, Pratapgarh".

7. It appears that, thereafter, instead of assisting the petitioner and ascertaining the distance of the plot from Reeva Road, New Yamuna Bridge Road crossing and also from Reeva Road as main land mark, the respondent no. 3 rejected the building plan by order dated 28.09.2017, which is reproduced below:-

"प्रेषक,

जोनल अधिकारी,

इलाहाबाद विकास प्राधिकरण,

इलाहाबाद।

सेवा में,

श्रीमती सीता देवी,

पत्नी श्री राम लाल सरोज,

निवासिनी- ग्राम अर्जुनपुर, तहसील पट्टी,

जिला प्रतापगढ़।

पत्रांकः- 24/जोन-4/उप०-4बी/शमन/वि०प्रा०/2०17-18 दिनांक 28.०9.2०17

विषयः- पार्ट आफ आराजी संख्या 1०7/ए, मौजा चाका परगना अरैल, तहसीन करछना, इलाहाबाद में दाखिल शमन मानचित्र के सम्बन्ध 0में।

महोदया,

कृपया आपके द्वारा पार्ट आफ आराजी संख्या 1०7/ए,मौजा चाका, अरैल, करछना, इलाहाबाद के दाखिल शमन मानचित्र की आपत्तियों के निराकरण एंव संशोधित शमन मानचित्र दाखिल करने हुते पत्र दिनांक 26.8.2०17 के द्वारा सूचित किया गया, किन्तु आप द्वारा आपत्ति का निराकरण कराकर संशोधित शमन मानचित्र दाखिल नहीं किया गया। आपत्ति निराकरण के अभाव में उपरोक्तानुसार दाखिल शमन मानचित्र अस्वीकृत किया जाता है। आप स्थल पर किसी प्रकार का निर्माण प्रारम्भ न करें, अन्यथा निर्माण के विरूद्ध उत्तर प्रदेश नगर नियोजन एंव विकास अधिनियम 1973 की सुसंगत धाराओं के अन्तर्गत ध्वस्तीकरण की कार्यवाही की जायेगी, जिसकी सम्पूर्ण जिम्मेदारी आपकी होगी।

भवदीय,

ह० अप०

जोनल अधिकारी,

इलाहाबाद विकास प्राधिकरण,

इलाहाबाद।"

8. After four years of rejection of the aforesaid building plan, the respondent no. 3 through building inspector, lodged the impugned First Information Report No. 0219 / 2021, dated 08.03.2021, under Sections 447 I.P.C. and Section 28 (1) of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as "Act of 1973"), alleging that the construction has been completed by the petitioner which has resulted in commission of a cognizable offence.

9. From perusal of the counter affidavit/personal affidavit dated 27.09.2021, filed today by respondent no. 3, it appears that the order dated 10.10.2017 was passed by the Zonal Officer granting sanction for prosecution against the petitioner under Section 49 of the Act of 1973. The counter affidavit filed by respondent no. 3 is totally silent on the point as to whether after granting sanction for prosecution vide order dated 10.10.2017, a complaint under the Act of 1973 was filed by respondent no. 3?

10. Section 48 of the Act of 1973 provides that "No Court inferior to that Magistrate of the first class shall try an offence punishable under this Act". However, the impugned F.I.R. has been lodged by the building inspector for alleged commission of offence under Section 28 (1) of the Act of 1973.

11. From the facts as briefly noted above, it prima facie appears to us that no defect was found by respondent no. 3 in the building plan, submitted by the petitioner. By notice dated 26.08.2017, respondent no. 3, merely, required the petitioner to give details of distances so as to show land mark. For this purpose, respondent no. 3 / its officers could have assisted the petitioner and could have ascertained the distance even from their own records or on the field and thus, could assist the petitioner to remove the objection. Unfortunately, even after 75 years of independence, public servants could not realize their responsibilities to assist public and not to create hindrance and obstructions in getting the building plan sanctioned.

12. At this juncture, we are reminded of the observations made by Hon'ble Supreme Court in the case of N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994) 6 SCC 205, which is reproduced below:-

"25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modem jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the "financial instability of the infant American States rather than to the stability of the doctrine's theoretical foundation", or because of "logical and practical ground", or that "there could be no legal right as against the State which made the law" gradually gave way to the movement from, "State irresponsibility to State responsibility". In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury4. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State."

(Emphasis supplied by me)

13. In Common Cause, A Registered Society v. Union of India and others, (1996)6 SCC 530 (Para 26), Hon'ble Supreme Court held as under:

"No public servant can say "you may set aside an order on the ground of malafide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary".

14. In Shivsagar Tiwari Vs. Union of India and others (1996) 6 SCC 558, Hon'ble Supreme Court quoted with approval of the observations of Edmund Burke, as under:

"An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will, who did not soon find that he had no end but his own profit."

15. In Delhi Development Authority Vs. Skipper Construction and Another AIR 1996 SC 715 (Para 6) Hon'ble Supreme Court observed as under:

"A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defect the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."

16. In Mohammad Iqbal and Anr. v. State of U.P. and others 2016 (9) ADJ 593 (Para 11 and 17), this Court held as under:

"11. In a democratic system governed by rule of law, Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has and never would be a silent spectator but always react to bring authorities within rule book or to make them accountable."

17. We, therefore dispose of this writ petition with cost of Rs.2 lacs which shall be paid at the first instance by respondent-1 since respondent-3 is the official and agent of respondent-1, but it shall have liberty to recover such amount from authority concerned who is responsible for such illegal action of detention of petitioner's vehicle on 3.10.2014 and onwards."

17. In Natural Resources Allocation, In re, Special Reference No. 1 of 2002, (2012) 10 SCC 1 (Para 172 and 184) Hon'ble Supreme Court held, as under:

"172.The judgment in LDA case brings out the foundational principle of executive governance. The said foundational principle is based on the realisation that sovereignty vests in the people. The judgment, therefore, records that every limb of the constitutional machinery is obliged to be people oriented. The fundamental principle brought out by the judgment is that a public authority exercising public power discharges a public duty, and, therefore has to subserve general welfare and common good. All power should be exercised for the sake of society. The issue which was the subject-matter of consideration, and has been noticed along with the citation was decided by concluding that compensation shall be payable by the State (or its instrumentality) where inappropriate deprivation on account of improper exercise of discretion has resulted in a loss, compensation is payable by the State ( or its instrumentality). But where the public functionary exercises his discretion capriciously, or for considerations which are malafide, the public functionary himself must shoulder the burden of compensation held as payable. The reason for shifting the onus to the public functionary deserves notice. This Court felt that when a court directs payment of damages or compensation against the State, the ultimate sufferer is the common man, because it is taxpayers' money out of which damages and costs are paid.

184. Another aspect which emerges from the judgments (extracted in paras 159 to 182, above) is that, the State, its instrumentalities and their functionaries, while exercising their executive power in matters of trade or business, etc. including making of contracts, should be mindful of public interest, public purpose and public good. This is so, because every holder of public office by virtue of which he acts on behalf of the State, or its instrumentalities, is ultimately accountable to the people in whom sovereignty vests. As such, all powers vested in the State are meant to be exercised for public good and in public interest. Therefore, the question of unfettered discretion in an executive authority, just does not arise. The fetters on discretion are clear, transparent and objective criteria or procedure which promotes public interest, public purpose and public good. A public authority is ordained, therefore to act, reasonably and in good faith and upon lawful and relevant grounds of public interest."

(Emphasis supplied by me)

18. The respondents are State within the meaning of Article 12 of the Constitution of India. They are public functionary. As per Constitution, the sovereignty vests in people. Every government functionary including the public authorities are obliged to be people oriented. The public officers are public servants and they have been employed to serve people. They are accountable for their illegal acts and for violating the Constitutional and Statutory provisions. They cannot be a cause for harassment to the people. An ordinary citizen or a common man is hardly equipped to match such might of the officers of the State or instrumentalities of the State-Governments. Harassment of a common man by public authorities is socially abhorring and legally impermissible.

19. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Every holder of public office by virtue of which he acts on behalf of the State, or its instrumentalities, is ultimately accountable to the people in whom sovereignty vests. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally. No public servant can say you may set aside an order on the ground of malafide but you cannot hold me personally liable. No public servant can arrogate to himself the power to act in a manner which is arbitrary. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. Harassment of a common man by public authorities is socially abhorring and legally impermissible. In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Where the public functionary exercises his discretion capriciously, or for considerations which are malafide or where there is flagrant abuse of power the public functionary himself must shoulder the burden of costs or compensation held as payable.

20. In the case of M/s Transport Corporation of India Ltd., Hyderabad vs. Commissioner of Trade Tax, U.P., 1998 UPTC 950 (para-5), learned Single Judge of this Court has observed in the matter of interception of truck by Trade Tax Authorities that drivers need help and guidance and officers at the check post, are expected to render them the necessary help and guidance and any minor deficiency should be ignored or got rectified. They are not expected to act as hounds smelling a rat everywhere and put undesirable restraint on the movements of goods.

21. The observations made in the aforesaid judgment, in principle, applies on the facts of the present case also. The officers of the respondent - Development Authorities are not expected to act as hounds smelling a rat everywhere and put an undesirable restraint or hindrances in granting permission or sanction of building map filed by an individual, particularly in matters of small houses, like the present one and to harass further lodge first information report to book the applicant/ petitioner to initiate malafidely criminal proceedings.

22. Although, we intended to conclude this judgment today but the learned A.G.A. and respondent no. 3 made statements on instruction that the respondents themselves will examine the matter for taking appropriate decision/action and, therefore, the case may be adjourned for the day.

23. As prayed by learned A.G.A. and respondent no. 3, put up as a fresh case on 25.10.2021 for further hearing.

24. On the next date fixed, respondent nos. 3 and 4 shall file their personal affidavits.

25. Considering the facts and circumstances of the case, as briefly noted/discussed above, as well as the provisions of Section 48 of the Act of 1973, as an interim measure, it is provided that till next date fixed, the petitioner shall not be arrested.

26. This order has been passed in presence of Sri Arvind Chauhan, Vice Chairman, Prayagraj Development Authority and Sri R.S. Verma, Law Officer, Prayagraj Development Authority, who are present in Court.

27. It is made clear that both the aforesaid officers are not required to remain personally present before this Court on the next date fixed.

Order Date :- 28.9.2021

Rameez