# Akash Jan Kalyan Samiti & Ors v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-23
- **Case number:** Public Interest Litigation (PIL) No. 826 of 2021
- **Bench:** Sanjay Yadav, C.J. Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-jan-kalyan-samiti-ors-v-state-of-u-p-ors-47144
- **Pages:** 4

## Headnote

A. PIL-Article 226-Uttar Pradesh Urban
Planning and Development Act, 1973Sections 14, 15, 15-A, 26-A, 26-C, 28-A(1),
28-A(4)-availability
of
alternative
statutory remedy of appeal-contention of
the petitioner that there was a sanctioned
gate towards the Madhubani Colony,
which has been unauthorizedly sealed, is
not
made
out-petitioner
has
not
substantiated presence and sealing of a
sanctioned exit through any documentary
evidence-petitioner can avail alternative
remedy available u/s 28-A(4) against the
order within 30 days-chairman may after
hearing the parties to appeal either allow
or dismiss the appeal.(Para 1 to 15)

The petition is dismissed. (E-5)

## Text

7 All. Akash Jan Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
105
impedes execution of projects of public
importance
and
disables
them
from
discharging their constitutional and legal
obligations towards the citizens. In cases
relating to recovery of the dues of banks,
financial institutions and secured creditors,
stay granted by the High Court would have
serious adverse impact on the financial
health of such bodies/institutions, which
(sic will) ultimately prove detrimental to
the economy of the nation. Therefore, the
High Court should be extremely careful and
circumspect in exercising its discretion to
grant stay in such matters. Of course, if the
petitioner is able to show that its case falls
within any of the exceptions carved out in
Baburam Prakash Chandra Maheshwari v.
Antarim Zila Parishad, Whirlpool Corpn. v.
Registrar of Trade Marks and Harbanslal
Sahnia v. Indian Oil Corpn. Ltd. and some
other judgments, then the High Court may,
after
considering
all
the
relevant
parameters and public interest, pass an
appropriate interim order."

17. The writ petition ought not to
have been entertained and the interim
order granted for the mere asking without
assigning special reasons, and that too
without even granting opportunity to the
Appellant to contest the maintainability of
the writ petition and failure to notice the
subsequent
developments
in
the
interregnum. The opinion of the Division
Bench that the counter affidavit having
subsequently been filed, stay/modification
could be sought of the interim order cannot
be considered sufficient justification to
have declined interference."

10. This writ petition is dismissed on
the grounds of maintainability leaving it
open for the petitioner to approach the Debt
Recovery Appellate Tribunal under Section
18 of the Act.
----------
(2021)07ILR A105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.06.2021

BEFORE

THE HON'BLE SANJAY YADAV, C.J.
THE HON'BLE VIVEK AGARWAL, J.

Public Interest Litigation (PIL) No. 826 of 2021

Akash Jan Kalyan Samiti & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Swati Agrawal Srivastava, Kamal Krishna
Roy

Counsel for the Respondents:
C.S.C., Krishna Mohan Asthana, Nagendra
Nath Mishra

A. PIL-Article 226-Uttar Pradesh Urban
Planning and Development Act, 1973Sections 14, 15, 15-A, 26-A, 26-C, 28-A(1),
28-A(4)-availability
of
alternative
statutory remedy of appeal-contention of
the petitioner that there was a sanctioned
gate towards the Madhubani Colony,
which has been unauthorizedly sealed, is
not
made
out-petitioner
has
not
substantiated presence and sealing of a
sanctioned exit through any documentary
evidence-petitioner can avail alternative
remedy available u/s 28-A(4) against the
order within 30 days-chairman may after
hearing the parties to appeal either allow
or dismiss the appeal.(Para 1 to 15)

The petition is dismissed. (E-5)

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Matter is taken up through video
conferencing.
106 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard learned counsel for the
petitioners and learned counsel for the
respondents.

3. This writ petition in the name and
style of Public Interest Litigation has been
filed claiming following reliefs:-

"(i) Issue a writ, order or
direction in the nature of Mandamus
directing
the
Secretary,
Moradabad
Development Authority respondent no. 6 to
pass a fresh order after hearing the
petitioner society in compliance of the
order of the Hon'ble High Court dated
26.08.2020.

(ii) Issue a writ, order or
direction in the nature of Certiorari
quashing
the
impugned
order
dated
01.10.2020 (Annexure No. 11 to this writ
petition), passed by the respondent no. 6 by
which the entry gate of the Akash
Residency Colony towards the Madhubani
Colony has been illegally sealed.

(iii) Issue a writ, order or
direction in the nature of Mandamus
commanding the respondent no. 2 to
constitute an independent, impartial, high
powered committee to look into the matter
of the use of the gate and the road by the
residents of the Akash Residency Colony
towards the Madhubani Colony and submit
its report before the Hon'ble Court.

(iv) Issue a writ, order or
direction in the nature of Mandamus
commanding the respondents to remove the
sealing of the gate of the Akash Residency
Colony and allow its residence to use it in
accordance with law."

4. Learned counsel for the petitioner
submits that under similar facts and
circumstances, P.I.L. No. 768 of 2020 was
disposed of by a Coordinate Bench of this
Court directing the respondent no. 6Moradabad
Development
Authority,
Moradabad to look into the grievance of the
petitioners therein and take appropriate
action
in
accordance
with
law,
expeditiously, preferably within four weeks
from the date of presentation of copy of
this order.

5. Learned counsel for the petitioner
submits that petitioner is also claiming
similar order, but later on modifies his
submissions and submits that because of
various orders passed by the High Court
directing
Moradabad
Development
Authority to look into the grievances of
different
Resident
Welfare
Societies,
problem has been caused to the petitioner
and authorities be directed to give an
opportunity of hearing to the petitioner and
decide petitioner's representation on its own
merits.

6. In fact, in the guise of
opportunity
of
hearing
before
the
authority, the main relief claimed is for
issuance of a writ, order or direction in
the nature of Mandamus, commanding
the respondent to remove the sealing of
the gate of the

Akash Residency Colony and
allow its residents to use it in accordance
with law.

7. In support of this prayer, learned
counsel for the petitioner has placed
reliance on the provisions contained in
Section 26-A of Uttar Pradesh Urban
Planning and Development Act, 1973. It
is submitted that, even if a person has
made any encroachment on a land in a
development area, he has to be provided a
written notice of not less than 15 days
time before taking any decision to
remove obstruction/encroachment.
7 All. Akash Jan Kalyan Samiti & Ors. Vs. State of U.P. & Ors.
107

8. Placing reliance on provisions
contained in Section 26-A, it is submitted
that opportunity of hearing is ingrained in
the said statutory provision and petitioner is
entitled to opportunity of hearing.

9. Learned counsel for respondents, in
their turn, submits that petitioner has in
fact, tacitly conceded that there is an
encroachment of the petitioner's society on
a land in a development area and therefore,
authorities have sealed the gate of Akash
Residency Colony. It is further submitted
that if petitioner has any grievances in
regard
to
easementary
rights
of
its
members, then the remedy, which is open
to the petitioner is under the provisions of
the Indian Easements Act, 1882.

10. After hearing learned counsel for
the parties and referring to the provisions
contained in the Act of 1973, it is apparent
that the Act of 1973 provide for Zonal
Development Plans. Section 14 deals with
development of land in the developed area.
Section 15 provides for application for
permission and Section 15-A for issuance
of completion certificate. Petitioners have
not enclosed copy of the permission,
granted by the competent authority i.e.,
Moradabad
Development
Authority
granting them permission for development
and have also not filed copy of completion
certificate. Annexure-2, does not contain
approval
of
Moradabad
Development
Authority, but is only a layout of the
colony, which might have been or might
not have been submitted for approval.

11. Section 26-C, authorizes the authority
to remove anything erected or deposited in
contraventions of the Act without notice.

12. A perusal of the order dated
01.10.2020, passed by the Secretary of
Moradabad
Development
Authority,
Annexure-11 reveals that an opportunity of
hearing was given to Sri Gurjeet Singh
Chaddha S/o Harbhajan Singh Chaddha
vide letter dated 18.09.2020 to present is
case on 25.09.2020 with a further direction
that in case, party fails to present its case,
then it will be proceeded ex-parte and
orders will be passed in terms of the
provisions contained in Section 28-A(1) of
the Act of 1973. It has also come in the
impugned order that Sri Chaddha had filed
a reply on 25.09.2020 and accepted that as
House no. 26, situated in Madhubani
Extension Colony was in a dilapidated
condition and therefore, this building was
dismantled gradually and keeping in view
safety of this passage towards Madhubani
Scheme, passage was developed and was
used by the residents of Akash Residency.
It is mentioned in the reply that residents of
the Madhubani Scheme had also not raised
any objection and therefore, Sri Chaddha
prayed for providing a six feet wide
passage, as his properties are situated on
both sides of the Scheme.

13. The Secretary of Moradabad
Development Authority did not find this
proposal as acceptable and ordered for
sealing of the gate towards Madhubani
Colony.

14. Analyzing of order dated
01.10.2020, reveals that contentions of the
petitioner that there was a sanctioned gate
towards the Madhubani Colony, which has
been unauthorizedly sealed, is not made
out.
As
has
been
discussed
above,
petitioner has not substantiated presence
108 INDIAN LAW REPORTS ALLAHABAD SERIES
and sealing of a sanctioned exit, through
any documentary evidence.

It is admitted position that petitioner's
society has an alternative gate for ingress and
exit.

15. Section 28-A(4) provides for an
alternative statutory remedy to a person
aggrieved of an order made under sub-section
(1) or sub-section (2) to file an appeal to the
Chairman against that order within 30 days
from the date thereof and the Chairman may
after hearing the parties to the appeal either
allow or dismiss the appeal. Thus, it is evident
that there exists an alternative statutory remedy
of appeal against the order dated 01.10.2020,
quashing of which has been prayed by the
petitioner as part of prayer no. 2.

16. Thus, both in view of availability of
alternative statutory remedy of appeal and as is
evident from the impugned order dated
01.10.2020, that developer of the petitioner's
colony namely, Sri Chaddha, was afforded an
opportunity of hearing, inasmuch as, it is matter
of record (Annexure-1) that Akash Jan Kalyan
Samiti, was given registration on 05.11.2020
and was not in existence, when notices were
issued to the builder/developer in pursuance of
order dated 26.08.2020 passed by a Coordinate
Bench and said builder/developer was afforded
an opportunity of hearing, therefore, it cannot
be said that petitioner, who were not in
existence were required to be heard before
passing of order dated 01.10.2020. Thus,
petition being bereft of merits deserves to be
dismissed and is dismissed.
----------
(2021)07ILR A108
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.06.2021

BEFORE
THE HON'BLE SANJAY YADAV, C.J.
THE HON'BLE VIVEK AGARWAL, J.

Public Interest Litigation (PIL) No. 838 of 2021

Rahul Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Daya Shankar

Counsel for the Respondents:
C.S.C.

A. PIL-Evidence Act, 1872 - Article 226 -
presumption of genuineness u/s 81 of the
act, does not give rise to any presumption
of genuineness about news paper reportshence, it is not be treated as proof of facts
in them.(Para 2 to 8)

B. Petitioner failed to substantiate his
claim
through
any
substantial
documentary evidence and has not taken
pains to do proper research on the subject
to collect material which can be said to be
credible in nature. in fact, it is a publicity
oriented litigation.(Para 9)

The petition is dismissed. (E-5)

List of Cases cited:

1. Laxmi Raj Shetty & anr. Vs St. of T.N. AIR
(1988) SC 1274, para-5

2. B. Singh Vs U.O.I. & ors AIR (2004) SC 1923
( 1924, 1929)

3. Ravinder Kumar Sharma Vs St. of Assam
(1999) 7 SCC 435,

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State.

2. This petition has been filed by an
individual claiming himself to be a general