/11754/2023 of ABHA NAGAR AND 4 OTHERS Vs CHAIRMAN LUCKNOW DEVELOPMENT AUTHORITY AND 3 OTHERS on 25 December 2023

Court No. - 9

Case :- WRIT - C No. - 11754 of 2023

Petitioner :- Abha Nagar And 4 Others

Respondent :- Chairman Lucknow Development Authority And 3 Others Counsel for Petitioner :- Shashank Singh,Abhinav SinghCounsel for Respondent :- Ratnesh Chandra Hon'ble Rajan Roy,J.Hon'ble Jaspreet Singh,J.

Heard Shri Abhinav Singh, learned counsel for the petitionersand Shri V.K. Shahi and Shri Ratnesh Chandra, learned counselfor the opposite parties.

This Bench has been constituted today under the orders ofHon'ble the Acting Chief Justice considering the urgency shownby the petitioner' counsel, as they apprehended demolition oftheir 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 DevelopmentAuthority Lucknow and Ors. we have already passed an orderyesterday i.e. 24.12.2023 disposing of it. The order dated24.12.2023 reads as under:- "Shri V. K. Shahi and Shri Ratnesh Chandra, learned Advocates have filedtheir vakalatnama on behalf of opposite parties. The same is taken onrecord.

Heard Shri Abhinav Singh, learned counsel for the petitioner and ShriV.K. Shahi and Shri Ratnesh Chandra, learned counsel for the oppositeparties.

This Bench has been constituted today under the orders of Hon'ble theActing Chief Justice considering the urgency shown by the petitioner'counsel, as he apprehended demolition of his premises which is a flatsituated at F.I. Tower 37 Cantt. Road, Police Station - Kaiserbagh,Lucknow.

The contention of the petitioner's counsel in nutshell is that an order ofdemolition has been passed under Section 27(1) of the U.P. UrbanPlanning 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 theowner 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 notdeem it necessary to record the same as we are not entering into themerits of the same.

Sri Ratnesh Chandra, learned counsel for the L.D.A. contended on meritsthat in fact permission for constructing the building was available only forthe stilt plus 6 floors, therefore, the flat of the petitioner herein exits on the7th floor for which no sanction of map is there.

We do not wish to go into the merits of the matter, as, against the aforesaidorder dated 23.11.2023 the petitioner claims to have preferred an appealbefore the Chairman of Lucknow Development Authority, Lucknow underSection 27(2) of the U.P. Urban Planning and Development Act, 1973 on23.12.2023 i.e. within the time stipulated which has been registered in thecomputer as Case No. 3994 of 2023 (Computerized Case No.C202310000003994).

The submission is that the said appeal has not been heard even once. It isclaimed that the appeal is accompanied by an application for interimrelief which has also not been heard as yet.

Arguments

Learned counsel for the petitioner has relied upon a Division Benchjudgment of this Court rendered in Writ - C No. 16357 of 2020; AbbasAnsari and Anr. Vs. State of U.P. and Ors. dated 15.10.2020, a copy ofwhich is annexed as Annexure No. 21 to the writ petition, according towhich, certain general directions have been issued to the authorities, inalia, to the effect where ever demolition orders are passed in respect ofconstructions 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 theinterim relief application filed along with appeals, if any, expeditiouslypreferably within a a period of two weeks from the date of filing of theinterim application and till disposal of the interim application filed insuch statutory appeals the authorities should not take any steps forexecuting demolition orders.

The contention of the petitioner's counsel is that the impugned action ofdemolition is in the teeth of the said Division Bench Judgment.

On being confronted, Sri Ratnesh Chandra, learned counsel for theLucknow Development Authority could not deny the fact that there is aDivision Bench Judgment to the aforesaid effect which contains generaldirections.

Be that as it may, we do not delve at length on the issues involved, as, theywould be seen in the Appeal which has been filed, if it is so, before theopposite party no.1 keeping in mind the Division Bench judgment andsuch other law as may be applicable on the subject.

Suffice it to say that the Appeal having been filed and the same not havingbeen heard nor interim relief application having been heard, we cannotallow the demolition of the premises relating to the petitioner to go on inpursuance to the impugned order, as, it would not only render thestatutory appeal infructuous and cause grave prejudice to the petitioner,even otherwise, it would not be in keeping with principles of fairness and Accordingly, we stay the demolition of the petitioner's flat in pursuance ofthe impugned order till disposal of the interim relief application of thepetitioner which is said to have been filed in the aforesaid appeal beforethe opposite party no.1 i.e. Chairman, Lucknow Development Authority,Lucknow.

In fact, we request opposite party no.1 i.e. Chairman, LucknowDevelopment Authority to either decide the application for interim reliefor the appeal itself within a reasonable time after affording opportunity ofhearing to the concerned parties, keeping in mind law on the subject.While doing so, the Chairman, Lucknow Development Authority shalladhere to the judgement dated 25.10.2020 referred hereinabove.

The protection granted by us will be available only till disposal of theapplication for interim relief as aforesaid.

We make it clear that our order shall not prejudice the rights of the partiesin the pending appeal in any manner whatsoever. However, the DivisionBench judgment referred hereinabove will have to be kept in mind.

Sri V. K. Shahi, learned Additional Advocate General and Sri RatneshChandra, learned counsel for the Lucknow Development Authority whoare present shall immediately communicate this order, without waiting forits certified copy, to the Chairman and Vice-Chairman, LucknowDevelopment Authority, for strict compliance.

Conclusion

With the aforesaid observations/directions, the writ petition is disposed of.

The In-charge Senior Registrar of the Court shall also communicate thisorder to the aforesaid authorities forthwith."

In this case also it is said that appeals against the impugnedorder dated 23.11.2023 are pending, the details of which aregiven in Para-67 with supporting documents annexed at Page-64 Annexure No.13 of the writ petition. Interim reliefapplication has not been considered as yet.

Shri Abhinav Singh, learned counsel for the petitioners submitsthat he received communication for preponing of the date fixedin the appeal from 28.12.2023 to 26.12.2023 whereupon learnedcounsel for the LDA Shri V.K. Sahi and Shri Ratnesh Chandrawere asked to get the said facts verified and produce the recordswhich they have done and according to them no doubt amention was made by learned counsel for the LDA forpreponing the date considering our earlier order passedyesterday but the same has not been accepted and the datealready fixed i.e. 28.12.2023 is the date on which theappeals/interim relief filed therein would be considered.

It was also contended by Shri Abhinav Singh, learned counselfor the petitioners that if adverse decision is taken by the Chairman on 28.12.2023 or any subsequent date then at leastsome reasonable time be made available to the petitioners so asto enable them to avail further remedy in this regard as after alltheir rights to shelter would be adversely affected, if it is so.

Shri V.K. Sahi and Shri Ratnesh Chandra have opposed the writpetition as they did at the time of the earlier writ petition on thesame grounds.

We dispose ofthis writ petition also in terms of the abovequoted order dated 24.12.2023, meaning thereby, the petitionersherein shall be entitled to be benefit of theobservations/directions contained in the above quoted orderwith corresponding obligation on the opposite parties. Inaddition to the above quoted order, we provide that if anydecision is taken on the interim relief application or on theappeal itself substantially affecting the petitioners herein thensuch orders shall be uploaded by the office of the Chairman,LDA, within next 24 hours and a certified copy of the sameshall also be provided to the petitioners within the said period.A week's time shall be available from the date of uploading ofthe order and provision of certified copy to the petitioners, toavail other remedies and during the said period the said ordersas also the order impugned herein shall not be given effect.

Sri V. K. Shahi, learned Additional Advocate General and SriRatnesh Chandra, learned counsel for the LucknowDevelopment Authority who are present shall immediatelycommunicate this order, without waiting for its certified copy,to the Chairman and Vice-Chairman, Lucknow DevelopmentAuthority, for strict compliance.

The In-charge Senior Registrar of the Court shall alsocommunicate this order to the aforesaid authorities forthwith.

(Jaspreet Singh,J.) (Rajan Roy,J.)

Order Date :- 25.12.2023Rakesh/-