# A.D.A., Allahabad and another v. Sri Ram Prakash Pandey and another

- **Citation:** (2002) 1 ILRA 192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-08
- **Case number:** Second Appeal No. 2218 of 1985
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-d-a-allahabad-and-another-v-sri-ram-prakash-pandey-and-another-39790
- **Pages:** 4

## Headnote

Act 1973 - Section 27 Jurisdiction of civil
court - applications for section of map -
remained pending - Notice to raise the
construction given - not replied -
construction
raised
with
Notice
-
Demolition order - without Notice w/o
opportunity of hearing - held - illegal,
suit is only the proper remedy.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
192
view of this finding bar created by
Section 22 stood removed and thus there
was no legal impediment in enforcing the
agreement in question. Sub-section (2) of
Section 22 has no application to the facts
of the present case as no lease was
granted nor rights created by virtue of the
agreement in question in contravention of
sub-section (1) of section 22.

10. For the above reasons, this
appeal is dismissed as no substantial
question of law is involved therein.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 2218 of 1985

Allahabad
Development
Authority,
Allahabad and others

...Appellants
Versus
Sri Ram Prakash Pandey and others

 ...Respondent

Counsel for the Appellants:
Sri Ashok Mohiley

Counsel for the Respondents:
Sri K.N. Tripathi
Sri Vinod Mishra
Sri A.S. Diwaker

U.P. Urban Planning and Development
Act 1973 - Section 27 Jurisdiction of civil
court - applications for section of map -
remained pending - Notice to raise the
construction given - not replied -
construction
raised
with
Notice
-
Demolition order - without Notice w/o
opportunity of hearing - held - illegal,
suit is only the proper remedy.

(Delivered by Hon'ble B.K. Rathi, J.)

1. The respondent no. 1 filed the suit
against the appellants and respondent no.
2 for injunction to restrain them from
demolishing the house in dispute no. 33/2
Stanley Road, Allahabad. It is contended
that the respondent no. 1 purchased plot
no. 36 from Hari Mohan Tandon on
03.12.1980. He submitted a plan for
sanction for construction of the house
before the appellant on 14.09.1981. It was
not
sanctioned
and,
therefore,
the
respondent no. 1 on 16.12.1981 served a
notice on the appellant that he want to
start the construction and, therefore, either
the plan be sanctioned or if there is any
objection he may be informed. No reply
was given by the appellant. Therefore, on
27.12.1981 the respondent no.1 again
served a notice that he is starting the
constructions. The constructions were
complete regarding which the information
was given and the house was given
number 33/2 Stanley Road, Allahabad and
was also assessed to house tax. However,
later
on
the
appellant
treated
the
constructions as illegal and served notice
for demolition. The respondent no.1 was
ready to compound the matter but the
request
for
compounding
was
also
rejected, hence the suit was filed. The
appellants contested the suit and it is
contended that the house has been
constructed without sanction of the plan
and,
therefore,
it
is
liable
to
be
demolished. It was further pleaded that
the civil court has no jurisdiction to try
the suit.

2. The trail court has held that the
appellants have no right to demolish the
house and the court has jurisdiction to try
the suit. The suit was decreed by the trail
court. The appeal preferred by the
1All] A.D.A., Allahabad and another V. Sri Ram Prakash Pandey and another
193
 appellant was also dismissed. Therefore,
the appellant has preferred this second
appeal.

3. The second appeal was admitted
on the following substantial question of
law:

"Whether
the
Civil
Court
had
jurisdiction to entertain the suit in view of
the provisions contained in the U.P.
Urban Planning & Development Act,
1973"?

4. I have heard Sri Ashok Mohiley,
learned counsel for the appellants and Sri
A.S. Diwaker, learned counsel for the
respondents.

5. This appeal was admitted only on
one question of law and the parties have
confined their arguments to the said
question only. It is contended that the suit
is not maintainable in view of the
provisions of U.P. Urban Planning and
Development
Act,
1973
(hereinafter
referred to as 'the Act'). The perusal of
the provision show that section 15 deals
with the application for permission to
raise construction and also regarding
grant of permission. Section 15-A deals
with the completion certificate. The
material section which has been referred
to is section 27 which provided for the
order regarding demolition of building.
Clause (2) provide that if the order of
demolition of building is passed by the
Development authority, the aggrieved
person may appeal to the Chairman.
Clause (3) provide that the Chairman can
decide the matter. Clause (4) provide that
the decision of the Chairman on the
appeal and, subject to only such decision,
the order under sub-section (1), shall be
final and shall not be questioned in any
Court.

6. The other provision referred to is
Section 37 of the Act which provide that
every decision of the Chairman on appeal,
and subject only to any decision on appeal
(if it lies and is preferred), the order of the
vice-Chairman or other officer under
section 15, or section 27, shall be final
and shall not be questioned in any court.
Sub-Clause (4) of Section 41 of the Act
further provide that every order of the
State Government made in exercise of the
powers conferred by this Act shall be
final and shall not be called in question in
any court.

7. On the basis of these provisions, it
has been argued that the provisions of the
Act are self contained and they provided
appropriate
remedy
to
the
person
aggrieved. Therefore, the jurisdiction of
the civil court is expressly barred and the
court cannot entertain the suit under
section 9 C.P.C. Learned counsel in
support of the argument has referred to
the few cases:

8. The first case is Jitendra Nath
Biswas Versus M/s Empire of India and
Ceylone Tea Co, A.I.R. 1990 Supreme
Court, 255. This was case regarding
industrial dispute. The suit was filed for
reinstatement and back wages. It was held
that the relief cannot be granted to the
Civil Court and the jurisdiction is barred.

9. The second case referred to is The
Premier
Automobiles
Ltd.
Versus
Kamlakar Shantaram Wadke, A.I.R. 1975
Supreme Court, 2238. In this case also the
jurisdiction of the Civil Court was held to
be barred in cases where the dispute is in
regard to industrial disputes.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
194
10. The third case referred to is The
State of West Bengal Versus The Indian
Iron and Steel Co. Ltd., A.I.R. 1970
Supreme Court, 1298. In this case, it was
held that the jurisdiction of the Civil
Court is barred in the matter of levy of tax
as special Tribunal has been created.

11. The fourth case referred to is
Annamreddi Bodayya Versus Lokanarapu
Ramaswamy, A.I.R. 1984 Supreme Court
1726. In this case, it was held that the
question of the "ryot" can be decided by
the
Settlement
Officer
only
and
jurisdiction of the Civil Court is barred.

12. I have considered the law laid
down in all these cases. They are on
different points and have no direct
application in the facts of the present case.
It may be also mentioned that in the State
of West Bengal, the Apex Court has held
that "where the statute gives a finality to
the orders of the special tribunals in the
matter of levy of tax, the civil court's
jurisdiction may be held to be excluded, if
there is adequate remedy to do what the
civil court would normally do in a suit".
Therefore, in the light of this observation
it is to be seen whether the jurisdiction of
the civil court is barred in the present
case.

13. Learned counsel for the
respondent has also referred to the
decision reported in A.I.R. 1969 Supreme
Court, 78 Dhulabhai versus State of
Madhya Pradesh. In this case the
provision of Section 9 C.P.C. were
exhaustively considered and the principles
regarding exclusion of jurisdiction of the
Civil Court were laid down. Principle no.
1 alone is important in the present case
which is as follows:

"(1) Where the statue gives a finality to
the orders of the special tribunals the civil
court's jurisdiction must be held to be
excluded if there is adequate remedy to do
what the civil court would normally do in
a suit. Such provision, however, does not
exclude those cases where the provision
of the particular Act have not been
complied with or the statutory tribunal has
not
acted
in
conformity
with
the
fundamental
principles
of
judicial
procedure".

14. This provide that the jurisdiction
is barred only if there is adequate remedy
to do what the civil court would normally
do in a suit. This was also the view
expressed in the case of State of West
Bengal (supra). In view of this, it is to be
seen whether the jurisdiction of the civil
court is excluded.

15. Section 27 provide for service of
notice for the demolition of the building.
However,
it
is
contended
by
the
respondent that no notice was served. No
procedure has been prescribed nor there is
any provision for producing evidence.
Therefore, the remedy provided under
section 27 of the Act cannot be said to be
an adequate remedy so as to infer that the
jurisdiction of the civil court is barred.

16. I, therefore, find that the
jurisdiction of the civil court to decide the
suit is not barred.

17. No other point has been pressed
in this appeal.

The appeal is, therefore, without
merit and is hereby dismissed.
---------
1All] Rajesh Kumar Misra V. Registrar, Co-operative Societies U.P., Lucknow and others
195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 07, 2002.

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 30035 of 2001

Rajesh Kumar Misra

...Petitioner
Versus
Registrar, Co-operative Societies U.P.,
Lucknow and others
...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Singh
Sri Wasim Alam

Counsel for the Respondents:
Sri Q.H. Siddiqui
Sri B.N. Singh
Sri Rakesh Tiwari
S.C.

Constitution of India - Article 226 -
Compassionate
appointment
-
an
applicant
for
compassionate
appointment does not have any right to
claim a particular appointment. The
Service conditions of the respondent
Bank are governed by the U.P. Cooperative Societies Service Regulations,
1978 according to which no appointment
can be made in the bank without
approval
of
U.P.
co-operative
Institutional Board. Since the Board did
not give approval to the petitioner's
appointment. Obviously the petitioner
had no right to get that appointment.
The adhoc appointment of the petitioner
as Manager (Law) does not give him any
right to the post. (Held in para 5).

An
applicant
for
compassionate
appointment does not have any right to
claim a particular appointment. The post
of
Manger
(Law)
falls
in
class-II
category, hence the petitioner has no
right for appointment to that post under
Dying in Harness Rules.
Case relied on - A.I.R. 1996 SC P. 1961

(Delivered by Hon'ble M.Katju, J.)

1. This Writ petition has been filed
praying for a writ of certiorari to quash
the impugned order dated 19.07.2001
Annexure-9 to the writ petition and letter
dated 19.06.2001 Annexure-10 to the writ
petition.

2. We have heard learned counsel
for the parties.

3. The petitioner's father was
working as Senior Manager in U.P.
Sahkari Gram Vikas Bank and died in
harness on 09.08.1998. The petitioner is a
law
graduate
and
he
applied
for
appointment under the Dying in Harness
Rules vide application dated 09.09.1998
Annexure-1 to the writ petition. By order
date 04.02.1999 the Registrar wrote to the
Managing Director that the petitioner
does
not
possess
the
requisite
qualification
for
appointment,
vide
Annexure-2
to
the
writ
petition.
Thereafter the a petitioner met the
Administrator of the Bank and applied for
appointment to some post lower than
Senior Manager. He also applied for the
appointment
as
Manager
(Law)
on
compassionate
ground
to
the
Administrator. The Administrator then
wrote to the Managing Director to issue
appointment letter of the post of Manager
(Law) vide Annexure 3 to the writ
petition. Consequently the appointment
letter was issued to the petitioner as
Manager (Law) vide Annexure-4 to the
writ petition. A perusal of this letter
shows that the petitioner was appointment
on ad hoc capacity and subject to the