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PREM LATA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Prem Lata v. State Of U.P. & Others - WRIT - C No. 25567 of 2007 [2007] RD-AH 10296 (31 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.33

Civil Misc. Writ Petition   No.  25567   of  2007

Prem Lata  .............................................................................    Petitioner

Versus

State of Uttar Pradesh & others   ...............................          Respondents

....................................

Hon'ble Ashok Bhushan, J.

Heard counsel for the petitioner Sri Sanjay Kumar Om and Sri M. C. Tripathi  holding brief of Sri Vivek Verma appearing for the respondents No. 3 and 4.  Learned standing counsel appears for respondents No. 1 and 2.

By this writ petition the petitioner has prayed for quashing the order dated 18.10.2006 passed by the Vice Chairman Kanpur Development Authority, Kanpur and the order dated 11.5.2007 passed by the Commissioner, Kanpur Division, Kanpur  dismissing the appeal of the petitioner as not maintainable.

Brief facts necessary for disposing of the writ petition are:

The petitioner unauthorisingly occupied the plot developed by the Kanpur Development Authority  No. 126/9A, F. Block, Govind Nagar, Kanpur.  Petitioner's case in the writ petition is that the house was constructed much before1960 since a notice was given on  1.6.1960 by the Prescribed Authority asking the petitioner to show cause as to why the construction has been made without obtaining permission of the Prescribed Authority.  Petitioner's case is that  in pursuance of the notice and the scheme initiated by the Kanpur Development Authority in the year 1988-89 for regularisation of the unauthorised occupants  of the land of Gram Sabha or  the land of the Kanpur Development Authority  petitioner made  an application along with the requisite amount.  The petitioner's case in the writ petition is that the amount of Rs. 75,000/- was deposited on 24.1.1991, Rs. 9000/- on 26.3.1991 and thereafter the petitioner was representing the matter to the Kanpur Development Authority for deciding the case.  The petitioner had earlier filed a writ petition in this Court being writ petition No. 61480 of 2005  Smt. Prem Lata Malhotra Vs. Kanpur Development Authority & another which was disposed of on 3rd of October, 2005 directing the Vice Chairman, Kanpur Development Authority, Kanpur to pass appropriate order in accordance with law on the application of the petitioner.  In pursuance of the order dated 3.10.2005 passed by this Court, the Vice Chairman Kanpur Development Authority, Kanpur passed an order dated 18th of October, 2006 rejecting the representation of the petitioner .  The Vice Chairman Kanpur Development Authority observed that the representation of the petitioner   dated 23.7.2005 is not in accordance with the prescribed procedure  and rules.   The petitioner filed an appeal before the Commissioner  under Section 27 (2) of the Uttar Pradesh Urban Planning and Development Act, 1973 which has been dismissed as not maintainable.  

Learned counsel for the petitioner contended that the Vice Chairman Kanpur Development Authority has not considered the claim of the petitioner which was for regularisation in accordance with the Scheme quoted by the petitioner.  It is contended that the order of the Vice Chairman Kanpur Development Authority is a non-speaking order.  It has not been mentioned in the order as to which provision has been violated by the petitioner which dis-entitle her for the benefit of the scheme.  Sri M. C. Tripathi  refuting the submissions of the counsel for the petitioner, contended that the petitioner is not eligible  for any benefit under the Scheme and the deposit was beyond the time prescribed,  1/4th amount which is required to be deposited, has not been deposited and the Scheme was subsequently not approved by the State Government.

I have considered the submissions of counsel for the parties and perused the record.              

In so far as the order of the Commissioner dated 11.5.2007 is concerned the said order holds that the appeal is not maintainable.  The appeal  under Section 27 (2) of the Act can be filed against the order of demolition passed by the   Vice Chairman.   The present was case where the representation of the petitioner  was for getting the benefit of the Scheme  which was for regularisation of unauthorised constructions by the Kanpur Development Authority.  The order of the Vice Chairman cannot be strictly treated  as an order of demolition  hence the order passed by the  Commissioner dismissing the appeal cannot be faulted.  No error was committed in the order in rejecting the appeal of the petitioner.   The copy of the Scheme  and the advertisement issued by the Kanpur Development Authority has been brought on the record including the letter dated 26.2.1991 as  Annexure-9 to the writ petition.  In view of the order of the Division Bench the  representation of the petitioner  seeking benefit of the Scheme was required to be considered.  The Vice Chairman Kanpur Development Authority while rejecting the representation of the petitioner has only observed that the representation of the petitioner   dated 23.7.2005 is not in accordance rules and prescribed procedure and standard.  The words used by the Vice Chairman Kanpur Development Authority are general words without specifying  as to which are the reasons which dis-entitle the petitioner from claiming the benefit.    In the facts of the present case I am satisfied that the case is made out for fresh consideration of the petitioner's claim by the Vice Chairman,  Kanpur Development Authority, Kanpur.  The order impugned  although  noted  the facts and the fact that the amount was deposited by the petitioner  but has not adverted to the relevant facts and the scheme and the reasons for dis-entitling the petitioner.

Sri M. C. Tripathi learned counsel appearing for the respondents has placed reliance on the judgement of this Court passed in writ petition No. 53493 of 2006 ( Ramadhar Ram  Versus State of Uttar Pradesh & others delivered on 5,10.2006  ) and the judgement of this Court in writ petition No. 33575 of 2004  (Surendra Singh Yadav   Versus  State of Uttar Pradesh & others   ) decided on 19.8.2004.

The judgement of Ramadhar Ram's case relied by the counsel for the respondents was a case where the Court notedr the submission of the learned counsel for the Kanpur Development Authority that there is no Scheme for regularisation under which the case for regularisation could be considered.  In the present case the representation of the petitioner has been rejected by the Vice Chairman vide order dated 18.10.2006 not on the ground that there was no such scheme under which petitioner's case could be considered.   Hence the said judgement is not applicable in the facts of the present case.    In so far as the judgement of this Court  passed in Surendra Singh Yadav's case is concerned, that was a case where the regularisation was claimed under the same Scheme  floated in the year 1991. The Court while noticing the scheme  observed that if a person makes the self-assessment  of the property in his possession and deposits 1/4th amount of the assessed value within stipulated time and further deposits the balance in three years in half  yearly  instalments,  whenever agreement etc. would to be executed, it would be as per the rate prevailing in 1990-91.  The Court held that  in that case the petitioner never deposited  half yearly instalments as stipulated in the said Scheme.  Since in the present case the matter is being remitted  to the Vice Chairman, Kanpur Development Authority, Kanpur - respondent No. 3  for passing afresh order and it will be open for the Vice Chairman, Kanpur Development Authority,Kanpur to consider all relevant aspects and take appropriate decision.  

In above view of the matter the order of the Vice Chairman Kanpur Development Authority, Kanpur  dated 18.10.2006 Annexure 18 to writ petition is quashed.  The Vice Chairman is directed to pass fresh order in accordance with law.    It is made clear  that this Court is not expressing any opinion on the merits of the case and it is for the  Vice Chairman  to consider afresh all relevant records and take appropriate decision in accordance with law expeditiously preferably within two months from the date of production of certified copy of this order.

With t he above observations the writ petition is disposed of.  

D/-31.5.2007

SCS


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