Amber Gangwar vs State Of U.P. And 3 Others
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Allahabad High Court

Amber Gangwar vs State Of U.P. And 3 Others on 25 December, 2023

Bench: Mahesh Chandra Tripathi, Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:243178-DB
 
Court No. - 40
 

 
Case :- WRIT - C No. - 45507 of 2023
 

 
Petitioner :- Amber Gangwar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shreyas Srivastava
 
Counsel for Respondent :- C.S.C.,Dharmendra Singh Chauhan
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Piyush Agrawal,J.

1. Considering the urgency in the matter, Hon'ble the Acting Chief Justice has constituted the present Bench to hear the matter, hence, the matter has been placed before us.

2. Heard Shri Shreyas Srivastava, learned counsel for the petitioner; Shri Kunal Ravi Singh, learned Chief Standing Counsel for State respondents and Shri D.S. Chauhan, learned counsel for Bareilly Development Authority (BDA).

3. Present writ petition has been preferred for a direction to respondents not to undertake any demolition proceeding in pursuance of order dated 10.10.2023 till the disposal of Appeal being Case No.1526 of 2023 (Amber Gangwar v. State) pending before the Commissioner, Bareilly Division.

4. Learned counsel for the petitioner states that against the order of demolition dated 10.10.2023 passed by the Prescribed Authority under Section 27 (1) of the U.P. Urban Planning and Development Act, 1973 (in short "the Act, 1973"), the petitioner had preferred an appeal along with stay application, which was registered as Appeal No.C202312000001526 of 2023 (Ambar Gangwar v. State of U.P. & Ors.) before the Commission, Bareilly Division, which is pending consideration.

5. Learned counsel for the petitioner states that earlier also the Competent Authority, BDA had passed an order of demolition dated 5.5.2022 in Case No.BDA ANI2022/0000951 (B.D.A. v. Suresh Gangwar & Anr.), which was challenged by the father of the petitioner by preferring statutory appeal under Section 27 (2) of Act,1973 being Appeal No.C2022/2000000319 of 2022 (Suresh Gangwar v. Bareilly Development Authority & Ors.) along with stay application. The said appeal was admitted by the Commissioner, Bareilly Division, Bareilly vide order dated 5.8.2022 but the stay application was rejected. The said order dated 5.8.2022 was challenged by way of preferring Writ-C No.25633 of 2022 (Suresh Kumar Gangwar v. State of U.P. & Ors.). The said writ petition was decided on 15.9.2022 with following observations:-

"The petitioner has preferred the present petition inter-alia with the prayer to quash the order dated 05.08.2022 passed by the respondent no. 4 namely The Commissioner, Bareilly Division, Bareilly.

It is argued by the counsel for the petitioner that though the appeal filed by the petitioner was admitted but without assigning any reasons application for the grant of interim protection dated 19.05.2022 was rejected.

It is argued by Shri D.S. Chauhan, learned counsel appearing on behalf of respondents that the order impugned has been passed by the respondent no.4 is absolutely perfect and valid order and in the facts and circumstances of the case, the same does not call for any interference by this Court.

Apart from the same, it is argued by Shri D.S. Chauhan, learned counsel that in case the petitioner is aggrieved against the aforesaid order, liberty is available to approach the revisional authority under Section 41 of the U.P. Urban Planning and Development Act, 1973.

"Heard counsel for the parties and perused the record.

From perusal of the record, the Court is of the opinion that the order passed by the respondent no.4 dated 05.08.2022 by which the stay application filed by the petitioner was rejected is absolutely non speaking order, the same was passed by him without application of mind.

It is settled law as has been raised by the Apex Court in the case of Mool Chand Yadav vs. Raza Buland Sugar Company Ltd., Rampur & others [(1982) 3 SCC 484] that where a statutory appeal has been entertained or admitted for consideration and the order impugned is likely to visit the party with civil consequences judicial approach requires that during the pendency of appeal the operation of such order must be suspended in order to avoid undue hardship to the party concerned and to preserve the rights of the parties pending adjudication of the lis.

From perusal of the aforesaid, the Court is of the opinion that the order passed by the respondent no.4 dated 05.08.2022 in so far as rejection of the stay application is concerned, the same is liable to be set aside and hereby set aside.

Counsel for the petitioner is directed to file a fresh stay application along-with certified copy of this order before the respondent no.4 within a period of two weeks from today. If such application is filed, respondent no.4 is directed to pass a fresh order strictly in accordance with law on the said application within a period of two weeks thereafter. For a period of six weeks or till the time, the order is passed on the fresh stay application filed by the petitioner, no coercive action shall be taken against the petitioner.

It is made clear that the respondent no. 4 will pass the order strictly in accordance with law and without influence by the observation made in the present petition."

6. In pursuance of the aforesaid order, the father of the petitioner moved a stay application and the Commission, Bareilly Division was pleased to stay the execution of the order dated 5.5.2022 passed by the Competent Authority BDA. Meanwhile, the father of the petitioner died during pendency of Appeal No.C2022/2000000319 of 2022. While the said Appeal No.C2022/2000000319 of 2022 was still pending, the BDA had issued fresh notices under Section 27 (1) and 28 (1) of the Act, 1973 being Case No.26/23-24. The petitioner assailed the said notice in Writ-C No.25770 of 2023 (Amber Gangwar v. State of U.P. & Ors.). The said writ petition was disposed of on 28.8.2023 with following observations:-

"1. Heard Sri Shreyas Srivastava, learned counsel for the petitioner, Sri Dharmendra Singh Chauhan, learned counsel for the respondent nos. 2 and 3 and learned Standing Counsel.

2. Challenge has been raised to the notice dated 27.06.2023, issued by the Prescribed Authority under Section 27(1) of the U.P. Urban Planning and Development Act, 1973 and the proceeding arising therefrom.

3. The objection of the petitioner is that the proceeding has no legs to stand. Similar notice had earlier been issued with respect to the same property, at that time, to the petitioner's father. In those proceedings, appeal is pending and stay order is operating.

4. On the other hand, learned counsel for Development Authority states that earlier proceeding was with respect to different property.

5. Whatever be the correct facts, we do not propose to enter into the dispute on merits. Suffice is to note, the issue is engaging the attention of the original authority. The petitioner has submitted his reply thereto on 13.07.2023. No final order appears to have been passed by the respondent authority on the objection so raised.

6. Unless the objections raised by the petitioner are dealt with and appropriate reasoned order passed, it is difficult to accept any coercive measure being adopted by the respondents.

7. Accordingly, without entering into the merits, we dispose of the writ petition with a direction, the objections filed by the petitioner to the impugned notice dated 27.06.2023, be dealt with and decided by a reasoned and speaking order, after affording brief opportunity of hearing to the petitioner within a period of six weeks from today, for that purpose. The petitioner, if so advised, may file supplementary objection supported by his personal affidavit annexing thereto all relevant document within a period of two weeks from today.

8. As to the constructions, parties may maintain status quo as on date for the period of eight weeks."

7. Consequently, the Competent Authority proceeded to decide the Case No.26/23-24 vide order dated 10.10.2023 directing demolition proceeding to be initiated. Meanwhile, the petitioner moved an application for compounding of alleged constructions, which was also dismissed by the Competent Authority, BDA vide order dated 15.12.2023. Consequently, the petitioner received another notice dated 18.12.2023 to the effect that in case he does not remove the alleged constructions on the said property the respondent authority shall proceed to demolish the said constructions.

8. Learned counsel for the petitioner states that the Act, 1973 is self-contained Act, wherein in case notice is served upon under Section 27 (1) of the Act, 1973 for illegal construction, the applicant/ aggrieved party has right to prefer appeal under Section 27 (2) of the Act, 1973 and even, thereafter, he can prefer revision under Section 41 of the Act, 1973. He submits that the petitioner has every right to press the stay application in the ongoing appeal but instead of waiting the outcome of the said proceeding, the respondents have passed the order dated 18.12.2023, which is not justified.

9. Learned counsel for the petitioner, in support of his submissions, has placed reliance on the judgment of Hon'ble the Apex Court in Mool Chand Yadav & Ors. v. Raza Buland Sugar Company Ltd., Rampur & Ors., (1982) 3 SCC 484, wherein it is observed that if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. The judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted.

10. Learned counsel for the petitioner submits that in case no reprieve is accorded, the petitioner would suffer irreparable loss and injury and for all practical purposes, the appeal itself would render as infructuous.

11. So far as factual aspect of the matter is concerned, it is not disputed by the respondents' counsel that the appeal is pending consideration.

12. Considering the facts and circumstances of the case, we find that admittedly the order dated 10.10.2023 is subject matter of challenge in the aforesaid appellate proceeding and the stay application is pending consideration. Respectfully considering the judgment cited at Bar and with the consent of parties, we dispose of the writ petition asking the appellate authority to consider and decide the stay application in the pending appeal challenging the order dated 10.10.2023 in accordance with law preferably within two weeks and also make an endeavour to decide the appeal expeditiously. Till the disposal of the said stay application, the parties shall maintain status quo as on today qua the property in dispute.

Order Date :- 25.12.2023

SP/