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Prakash Chandra Rai v. State Of U.P.& Others - WRIT - C No. 32875 of 1999  RD-AH 5320 (8 November 2005)
Civil Misc.Writ Petition No.32875 of 1999
Prakash Chandra Rai
State of U.P. and others
Hon.Shishir Kumar, J.
The present writ petition has been filed for quashing the orders dated 20.9.1996 and 6.7.1999 and issuing a writ in the nature of mandamus directing the respondents not to demolish the boundary wall surrounding the plot No.427/1, area 52 links situated in Mohalla Sahadatpura, Town and District Mau.
The facts arising out of the present writ petition are that the petitioner purchased a piece of land numbered as Plot No.427/1 through registered sale deed dated 16.2.1996 and the possession was handed over to the petitioner. The District Mau has been declared Regulated Area by the State Government under the provisions of U.P. (Regulation of building Operations) Act, 1958 which provides proper planning and development of the urbanization in accordance with the provisions of the Act No.32 of 1958. The petitioner after coming into possession of the aforesaid land submitted a map for permission under section 7 of the Act before the Prescribed Authority. A report was submitted by the concerned Junior Engineer and the Prescribed Authority granted permission vide its order-dated 16.5.1996. The petitioner constructed the boundary wall of about two feet high in accordance with sanctioned map. A notice-dated 22.6.1996 was received by the petitioner issued by the respondent No.3 under section 10 of the Act on the ground that unauthorized construction of boundary wall by encroaching the land of another person. The petitioner came to know that one Bhawani Shanker has filed an objection against the sanctioned order dated 16.5.1996 in favour of the petitioner. The petitioner filed a reply to the aforesaid notice on 8.7.1996 before the respondent No.3. The respondent No.3 without considering the objection decided to proceed the dispute between the petitioner and the respondent No.4 as a title suit. The petitioner has also filed an objection against the report of the Commissioner and the objection of the petitioner has not been decided. The Prescribed Authority passed a final order on 20.9.1996 holding that the petitioner has obtained the permission by mis-representation and has encroached over the land of respondent No.4 and as such, he directed to demolish the boundary wall.
Aggrieved by the order-dated 20.9.1996, the petitioner preferred an appeal before the Controlling Authority under Section 15(2) of the U.P. Act No.34 of 1958. The appeal filed by the petitioner was also rejected without assigning any reason vide its order dated 28.11.1997. The petitioner filed a revision and the same was also rejected then a Writ Petition No.44559 of 1997 was filed by the petitioner before this Court. The writ petition was decided vide its order dated 6.5.1999. A copy of the same has been filed as Annexure 4 to the writ petition. Then the petitioner filed a Civil Suit No.96 of 1999 before the Civil Judge (Junior Division) Mau. In view of the observations made in the writ petition and after hearing counsel for the defendant-respondent, the Civil Judge has passed an order of status-quo vide its order dated 25.5.1999.
The respondent No.4 after the order of injunction made an application before the prescribed authority for demolishing the construction raised by the petitioner. The petitioner filed an objection but the same was rejected. As the order passed by the prescribed authority dated 6.7.1999 is in the teeth of order passed by the Civil Court for status-quo, as such, the petitioner has approached this Court.
The notices were issued and the operation of the order-dated 6.7.1999 (Annexure 6 to the writ petition) was stayed.
It has been contended on behalf of the petitioner that the order of prescribed authority dated 6.7..1999 is in the teeth of the order passed of status-quo. The ground taken by the prescribed authority, who has proceeded for demolition on the ground that the order dated 25.5.1999 granted by the Civil Court, Mau will not be applicable or binding upon the prescribed authority as the prescribed authority is not a party to the civil suit. It has further been submitted on behalf of the petitioner that the respondents have passed the order removing the boundary wall of the petitioner in total contravention of the Government Order dated 6.3.1996. The entire proceedings under Section 10 of the Act directing for removal of the boundary wall, is wholly illegal and without jurisdiction. The Prescribed Authority has got no jurisdiction under the Act to exercise the power regarding the dispute of the title. The question regarding whether the boundary wall, which has been raised by the petitioner after sanction of the map is illegal or not or whether the same has been constructed on the land of the respondent No.4 is to be decided in the Civil Suit. The prescribed authority has not no jurisdiction to pass the said order.
A counter affidavit has been filed on behalf of the respondents and it has been submitted on behalf of the petitoner that the aforesaid land was purchased by the petitioner and there was a prior agreement of sale of the said land the petitioner has instituted the suit for the said purposes which is still pending and as the construction has been made on the land of the petitioner, therefore, the Prescribed Authority was well within jurisdiction to pass an order of demolition. It has further been submitted on behalf of the respondents that the cancellation of sanction of construction has been upheld by this Court in the writ petition filed by the petitioner, therefore, the order of the Prescribed Authority directing for demolition is correct and the Prescribed Authority is well within the jurisdiction to pass the said order.
I have heard learned counsel for the petitioner and the respondents' counsel and have perused the record.
It is not in dispute that at the initial stage the map was sanctioned by the prescribed authority for construction of the wall and on that basis the petitioner has constructed the boundary wall. If the petitioner has encroached upon the land of the respondent No.4, then it will be a case of illegal encroachment on the land of the respondent No.4. Unless and until it is established that whether the construction which has been raised by the petitioner is on the land of the respondent No.4, the Prescribed Authority cannot pass an order of demolition. The Prescribed Authority under the Act has no jurisdiction to decide the title dispute. It is also not in dispute that the civil Suit has been filed by the petitioner that is still pending and the status quo order has been passed. The finding to this effect by the Prescribed Authority that as he is not a party to the suit, therefore, the order of status-quo passed by the Civil Court is not binding upon him. The finding to that effect by the prescribed authority is wholly illegal. That as the question of title is involved and that has to be decided in the suit filed by the respondent No.4 for specific performance of contract as well as the suit filed by the petitioner. Therefore, in my view, it was appropriate for the Prescribed Authority, respondent No.3 not to pass an order of demolition of the wall of the petitioner, which was constructed after sanction of the map.
In view of the aforesaid fact, the order dated 6.7.1999 cannot be sustained to the extent regarding the demolition of the wall of the petitioner which has been constructed after permission.
The writ petition is partly allowed. There shall be no order as to costs.
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