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SMT. ASHA DEVI versus STATE OF U.P. THROUGH DISTRICT MAGISTRATE & OTHERS

High Court of Judicature at Allahabad

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Smt. Asha Devi v. State Of U.P. Through District Magistrate & Others - WRIT - C No. 39646 of 2007 [2007] RD-AH 14430 (23 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.29

Civil Misc. Writ Petition No.39646 of 2007

Smt. Asha Devi

Vs.

State of U.P. & others.

Hon'ble Dr. B. S. Chauhan, J.

Hon'ble Rakesh Sharma, J.

The petitioner has approached this Court for issuance of a writ of mandamus directing the Allahabad Development Authority (hereinafter referred to as the 'Development Authority') to take a decision on the representation of the petitioner in response to the notice which had been earlier issued to the predecessor-in-interest of the property in question and restraining the Development Authority from demolishing the disputed constructions on the grounds, referred to in the writ petition.

The dispute, in short, is in respect of the constructions standing over an area of 46.49 sq. meters, which is a part of the erstwhile nazul land recorded as 22-D, Civil Station, Allahabad, in which the petitioner is running a commercial establishment, namely, a jewellery shop. The petitioner claims that she was inducted as a tenant under an allotment order on 7th August, 1992 under the U.P. Act No. XIII of 1972. The landlord of the premises applied for renewal of the lease over which the property was situate, which was renewed and subsequently, one of the co-owners of the property nominated Mr. Ateeq Ahmad for grant of freehold of that portion of the land, which includes the present disputed property over an area of 438.95 sq. meters. The nomination was approved and the freehold was cleared in favour of Shri Ateeq Ahmad on 21st March, 2005.

Paragraph 28  of the writ petition contains a recital about Writ Petition No. 28988 of 2007, Ateeq Ahmad Vs. State of U.P. & Ors. This writ petition was decided by this very Bench on 3rd July, 2007 and which decision is reported in 2007 (58) ALR 419. We have perused the said decision and find that Shri Ateeq Ahmad, after having obtained the freehold of the area purchased by him including the area in which the petitioner claims herself to be a tenant, applied for sanction of the map before the Development Authority under the provisions of the U.P. Urban Planning and Development Act, 1973 (hereinafter called the 'Act 1973') for  construction of a commercial building. The said map was sanctioned and Shri Ateeq Ahmad raised constructions over the area excluding the area of the petitioner. The Development Authority subsequently discovered that the constructions had been raised in violation of the sanctioned plan, whereupon a revised plan for compounding the deviations was submitted by Shri Ateeq Ahmad under the provisions of Section 32 of the Act 1973. The Development Authority did not approve of the claim of compounding and proceeded to issue notices of demolition which came to be questioned by Shri Ateeq Ahmad in Writ Petition No.28988 of 2007, referred to herein above.

From a perusal of paragraph 13 of the writ petition, it appears that the map had been sanctioned over an area of 422.23 sq. meters. The petitioner, in paragraph 14 of the writ petition, admits that she had some knowledge of the submission of the map and its sanction about the construction of a commercial complex. It is also obvious that the construction was being raised and constructed and, therefore, the petitioner had knowledge about the same. The petitioner also appears to have knowledge about the sanction of the map, which is evident from a recital contained in the sale deed, which was executed in favour of the petitioner by Shri Ateeq Ahmad on 23rd May, 2007. This sale deed is in respect of an area measuring 46.49 sq. meters, which is within the area of the alleged map, which was got sanctioned by Shri Ateeq Ahmad. The recital in the sale deed, therefore, makes it clear that the petitioner had knowledge about the map, which was got sanctioned by Shri Ateeq Ahmad and it is for this reason that there is a specific recital contained in the said sale deed.

By virtue of the said sale deed executed on 23rd May, 2007, the petitioner became the owner of the area in dispute measuring 46.49 sq. meters over which the disputed constructions stand. According to the petitioner, these constructions were existing when Shri Ateeq Ahmad got the sanction of the map from the Development Authority. The notice, which was issued to Shri Ateeq Ahmad, is also stated to be in the knowledge of the petitioner to the extent as stated in paragraph 26 of the writ petition. However, the petitioner states that even though the said notice was in her knowledge but the same was not against the petitioner.

It is at this stage that the petitioner has approached this Court praying for the relief as referred to herein above.

From a perusal of the order, which has been passed against Shri Ateeq Ahmad, which was a subject matter of aforesaid Writ Petition No. 28988 of 2007 and which has been appended along with this writ petition as Annexure-11, it is clear that the portion on which the building of the petitioner stands, was indicated and undertaken to be demolished by Shri Ateeq Ahmad while seeking the sanction of the map before the Development Authority. This map which was sanctioned with the aforesaid pre-condition, is clearly recited in the sale deed of the petitioner. Thus, the petitioner had actual and constructive knowledge of the terms and conditions indicated in the map, which was sanctioned in favour of Shri Ateeq Ahmad.  Our view further finds support from the recital to this effect contained in the representation of the petitioner dated 23rd July, 2007, which is Annexure-8 to the writ petition. The petitioner, therefore, knowingly and willingly acquiesced to the said conditions and in spite of having the knowledge that the said portion had to be demolished, got a sale deed executed in her favour on 23rd May, 2007. This act of execution of the sale deed was, therefore, in our opinion, a contrivance to subvert the demolition proceedings. Once the area of the petitioner was clearly indicated as the front setback area in the sanctioned map with a further stipulation of the constructions being demolished, then the petitioner, who got the sale deed executed having knowledge of the sanction plan, cannot be now permitted to raise this issue on the ground that she had no knowledge of the said proceedings.

Apart from the aforesaid facts, the present petition does not challenge any of the orders passed by the Development Authority including the order passed against Shri Ateeq Ahmad, and which, according to the petitioner herself, directly affects her. Even otherwise, the petitioner was an erstwhile tenant but as on date, she only steps into the shoes of her predecessor-in-interest, namely, Shri Ateeq Ahmad. She cannot be permitted to raise a plea, which runs counter to the sanctioned plan as indicated in the sale deed of the petitioner.

Shri C.L. Pandey, learned Senior Advocate assisted by Shri Shailendra, appearing for the petitioner has urged that the petitioner has acquired an independent title and further that since no demolition proceedings have been permitted under the U.P. Act No. XIII of 1972, no demolition can be undertaken by the Development Authority.

Shri Zafar Nayyar, learned Additional Advocate General and Shri A.K. Mishra, learned counsel appearing for the Development Authority have submitted that the petitioner does not acquire a better title than Shri Ateeq Ahmad and that the petitioner would be governed by the terms and conditions of the map, which was sanctioned, as the sale deed has been executed after the map was sanctioned way back in the year 2005. The order of Development Authority for demolition, therefore, is in relation to the map which was sanctioned in the year 2005, which also included the portion of the petitioner.

We have considered the rival submissions made by learned counsel for the parties and perused the record.

Having considered the submissions made by learned counsel for the parties, we are of the opinion that the sale deed was obtained by the petitioner in full knowledge of the aforesaid proceedings and when her predecessor-in-interest had failed to get the compounding done in his favour, the petitioner has now set up a case, which cannot be entertained in discretionary exercise of our jurisdiction under Article 226 of the Constitution of India for the aforesaid reasons. More so, the issue of attracting the provisions of Section 21 of the U.P. Act No. XIII of 1972 does not arise inasmuch as that could have been an issue between the landlord and the tenant but in the instant case, the petitioner herself entered into transactions resulting into the sanction of the map, subject to the condition that the premises in dispute shall be demolished keeping in view the front setback and parking area under the sanctioned map. In this view of the matter, the aforesaid plea is not available to the petitioner. The petitioner cannot improve upon the case over and above the case of her Vendor. Admittedly, the premises in possession of the petitioner, of which she claims ownership, has been shown in the map got sanctioned by her Vendor having a construction over it and it was to be demolished for being used as front setback. It is also not in dispute that the said part has not been demolished and unless it is demolished, the front setback would remain in contravention of the sanctioned plan.

Keeping in view the aforesaid facts, no case for interference is made out for grant of any relief as prayed for in the writ petition under Article 226 of the Constitution of India. The petition is accordingly dismissed.

23.08.2007

AHA


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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