Allahabad High Court
Yasmeen Iqbal And 11 Others vs Chairman Lucknow Development ... on 25 December, 2023
Bench: Rajan Roy, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:85832-DB
Court No. - 9
Case :- WRIT - C No. - 11755 of 2023
Petitioner :- Yasmeen Iqbal And 11 Others
Respondent :- Chairman Lucknow Development Authority And 3 Others
Counsel for Petitioner :- Shashank Singh,Abhinav Singh
Counsel for Respondent :- Ratnesh Chandra
Hon'ble Rajan Roy,J.
Hon'ble Jaspreet Singh,J.
Heard Shri Abhinav Singh, learned counsel for the petitioner and Shri V.K. Shahi and Shri Ratnesh Chandra, learned counsel for the opposite parties.
Learned counsel for the petitioners at the outset submits that the present petition insofar as the petitioner No.2 is concerned has been filed inadvertently as she had already filed a writ petition earlier. He further submits that the petition with regard to the petitioner No.2 may kindly be dismissed as not pressed.
We accept the request and dismiss the petition as not pressed insofar as petitioner No.2 is concerned.
This Bench has been constituted today under the orders of Hon'ble the Acting Chief Justice considering the urgency shown by the petitioner' counsel, as they apprehend demolition of their flats situated at F.I. Tower 37 Cantt. Road, Police Station - Kaiserbagh, Lucknow.
In similar matter bearing Writ - C No. 11753 of 2023; Mohd. Tauqeer Siddique Vs. Chairman Lucknow Development Authority Lucknow and Ors. we have already passed an order yesterday i.e. 24.12.2023 disposing of it. The order dated 24.12.2023 reads as under:-
"Shri V. K. Shahi and Shri Ratnesh Chandra, learned Advocates have filed their vakalatnama on behalf of opposite parties. The same is taken on record.
Heard Shri Abhinav Singh, learned counsel for the petitioner and Shri V.K. Shahi and Shri Ratnesh Chandra, learned counsel for the opposite parties.
This Bench has been constituted today under the orders of Hon'ble the Acting Chief Justice considering the urgency shown by the petitioner' counsel, as he apprehended demolition of his premises which is a flat situated at F.I. Tower 37 Cantt. Road, Police Station - Kaiserbagh, Lucknow.
The contention of the petitioner's counsel in nutshell is that an order of demolition has been passed under Section 27(1) of the U.P. Urban Planning and Development Act 1973 on 23.11.2023 in Case No. 323/2022 (Lucknow Development Authority vs Manager, F.I. Towers 37 Cantt. Road, Police Station - Kaiserbagh, Lucknow. The petitioner happens to be the owner of a Flat in the said Tower. According to the petitioner's counsel, though, in the gift deed the situation of the flat is mentioned as on the 6th Floor, but, he fairly admitted to the fact that in fact it is on the 7th floor. He had further explanation to offer in this regard, however, we do not deem it necessary to record the same as we are not entering into the merits of the same.
Sri Ratnesh Chandra, learned counsel for the L.D.A. contended on merits that in fact permission for constructing the building was available only for the stilt plus 6 floors, therefore, the flat of the petitioner herein exits on the 7th floor for which no sanction of map is there.
We do not wish to go into the merits of the matter, as, against the aforesaid order dated 23.11.2023 the petitioner claims to have preferred an appeal before the Chairman of Lucknow Development Authority, Lucknow under Section 27(2) of the U.P. Urban Planning and Development Act, 1973 on 23.12.2023 i.e. within the time stipulated which has been registered in the computer as Case No. 3994 of 2023 (Computerized Case No. C202310000003994).
The submission is that the said appeal has not been heard even once. It is claimed that the appeal is accompanied by an application for interim relief which has also not been heard as yet.
Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court rendered in Writ - C No. 16357 of 2020; Abbas Ansari and Anr. Vs. State of U.P. and Ors. dated 15.10.2020, a copy of which is annexed as Annexure No. 21 to the writ petition, according to which, certain general directions have been issued to the authorities, in alia, to the effect where ever demolition orders are passed in respect of constructions raised on private properties under the Act referred therein, the demolition should wait till statutory period of appeal comes to an end. Further direction is to the appellate authority to endeavour to decide the interim relief application filed along with appeals, if any, expeditiously preferably within a a period of two weeks from the date of filing of the interim application and till disposal of the interim application filed in such statutory appeals the authorities should not take any steps for executing demolition orders.
The contention of the petitioner's counsel is that the impugned action of demolition is in the teeth of the said Division Bench Judgment.
On being confronted, Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority could not deny the fact that there is a Division Bench Judgment to the aforesaid effect which contains general directions.
Be that as it may, we do not delve at length on the issues involved, as, they would be seen in the Appeal which has been filed, if it is so, before the opposite party no.1 keeping in mind the Division Bench judgment and such other law as may be applicable on the subject.
Suffice it to say that the Appeal having been filed and the same not having been heard nor interim relief application having been heard, we cannot allow the demolition of the premises relating to the petitioner to go on in pursuance to the impugned order, as, it would not only render the statutory appeal infructuous and cause grave prejudice to the petitioner, even otherwise, it would not be in keeping with principles of fairness and natural justice.
Accordingly, we stay the demolition of the petitioner's flat in pursuance of the impugned order till disposal of the interim relief application of the petitioner which is said to have been filed in the aforesaid appeal before the opposite party no.1 i.e. Chairman, Lucknow Development Authority, Lucknow.
In fact, we request opposite party no.1 i.e. Chairman, Lucknow Development Authority to either decide the application for interim relief or the appeal itself within a reasonable time after affording opportunity of hearing to the concerned parties, keeping in mind law on the subject. While doing so, the Chairman, Lucknow Development Authority shall adhere to the judgement dated 25.10.2020 referred hereinabove.
The protection granted by us will be available only till disposal of the application for interim relief as aforesaid.
We make it clear that our order shall not prejudice the rights of the parties in the pending appeal in any manner whatsoever. However, the Division Bench judgment referred hereinabove will have to be kept in mind.
Sri V. K. Shahi, learned Additional Advocate General and Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority who are present shall immediately communicate this order, without waiting for its certified copy, to the Chairman and Vice-Chairman, Lucknow Development Authority, for strict compliance.
With the aforesaid observations/directions, the writ petition is disposed of.
The In-charge Senior Registrar of the Court shall also communicate this order to the aforesaid authorities forthwith."
The petitioners herein claim to be owners of Flats at F.I. Tower situated at 37 Cant. Road, Police Station Kaiserbagh, Lucknow at Floor No.7, 8 and 9. They have not been able to prefer appeals against the order passed by the Prescribed Authority on 23.11.2023. The submission in this regard is that copy of this order was not provided to them and they were not parties to the proceedings. It is also said that the time for filing appeals has not expired as yet even from the date of communication of the said order to the secretary the Resident Welfare Association, which is 25.11.2023.
Shri V.K. Sahi and Shri Ratnesh Chandra submitted that they were represented before the Prescribed Authority through the Resident Welfare Association.
We do not wish to inter into this controversy at this stage.
Considering the facts of this case, the petitioners may submit their appeals before the Appellate Authority against the order of the Prescribed Authority, by tomorrow. If not, then along with an application for condonation of delay within next two days. If the appeals are filed within limitation, the Appellate Authority shall consider the matter in light of our earlier order quoted hereinabove. If it is delayed, delay condonation application shall be considered within three days of filing of the appeal along with application for condonation of delay and thereafter if the delay is condoned, the matter would be considered in light of our earlier order which is quoted hereinabove. The benefit of the above quoted order shall be available to the petitioners accordingly.
It is expected that all relevant pleas raised by the learned counsel for the petitioners would be considered by the Appellate Authority whether while deciding the appeal or the interim relief application.
The petitioners' counsel says that the builder is absconding and they do not have the requisite papers and the LDA is not providing it to them therefore they proposed to move an application for summoning relevant documents including compounding file relating to the premises in question. If the law permits, he may do so before the Appellate Authority which shall be considered accordingly by the latter, as per law.
Sri V. K. Shahi, learned Additional Advocate General and Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority who are present shall immediately communicate this order, without waiting for its certified copy, to the Chairman and Vice-Chairman, Lucknow Development Authority, for strict compliance.
We dispose of this writ petition in the aforesaid terms.
The In-charge Senior Registrar of the Court shall also communicate this order to the aforesaid authorities forthwith.
(Jaspreet Singh,J.) (Rajan Roy,J.)
Order Date :- 25.12.2023
Rakesh/-
