# Pradeep Kumar Pandey v. Sanjukta Sachieu Uttar Pradesh Shashan Avas Anubhag-3 & others

- **Citation:** (2003) 2 ILRA 350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003
- **Case number:** Civil Misc. Writ Petition No. 24643 of 1988
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-pandey-v-sanjukta-sachieu-uttar-pradesh-shashan-avas-anubhag-3-40103
- **Pages:** 5

## Headnote

U.P. Municipalities Act- S-181- map
sanctioned
by
Municipal
Board
on
25.2.82-Construction started in March
82-U.P. Regulation of Building operation
Act 1958 came into force in District Basti
on 14.10.83- in progress of Construction
work stay order operation- Construction
could not be completed within on yearwhether
further
fresh
permission
required? Held-"No" matter of common
sense when the stay order was operation
how can a construction be completed
within one year- order passed by the
authorities quashed- Petition allowed
with cost of Rs.20,000/-.

Held- Para 5

It is evident from the perusal of the
three impugned orders that they are
based
on
the
premise
that
the
construction
on
the
strength
of
sanctioned
map
under
the
U.P.
Municipalities Act ought to have been
completed within a period of one year or
in any case prior to the enforcement of
the
Act.
This
approach
is
totally
perverse. The further finding of the
authors of the three impugned orders is
that there is no provision that in case the
on going constructions are stopped by
any authority in purported exercise of
powers, the duration of stay for which
the construction was stopped, would be
immaterial for computing the period of
one year as provided under sub-clause
(2)
of
section
181
of
the
U.P.
Municipalities Act. This finding is also
perverse. It is a matter of common sense
that if an act was initiated within the
specified period, the stoppage time in
view of intervention through stay orders
would have to be excluded. In that view
of the matter, the three impugned orders
are totally perverse and it appears have
been passed with malafide intention to
cause
harassment
and
loss
to
the
petitioner.

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
350
University and his basic job was to impart
training to the farmers in the various
villages. In our opinion since there is a
disputed question involved in this case
what is the nature of the duties and
function of the petitioner it would be
appropriate to delegate the petitioner to
his alternative remedy under Section 23 of
the U.P. Agriculture Universities Act. The
writ petition is, therefore, dismissed on
the ground of alternative remedy with the
liberty to the petitioner to file a
representation to the Chancellor under
Section 23 of the U.P. Agriculture
Universities Act and the Chancellor is
requested to decide the representation as
the earliest preferably within two months
in accordance with law after hearing
parties concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MARCH 3RD, 2003

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 24643 of 1988

Pradeep Kumar Pandey
...Petitioner
Versus
Sanjukta Sachieu Uttar Pradesh Shashan
Avas Anubhag-3 & others ...Respondents

Counsel for the Petitioner:
Sri S.D. Pathak
Sri B.P. Singh
Sri Rakesh Pathak
Sri Dinesh Pathak

Counsel for the Respondents:
Sri Jokhen Prasad
S.C.

U.P. Municipalities Act- S-181- map
sanctioned
by
Municipal
Board
on
25.2.82-Construction started in March
82-U.P. Regulation of Building operation
Act 1958 came into force in District Basti
on 14.10.83- in progress of Construction
work stay order operation- Construction
could not be completed within on yearwhether
further
fresh
permission
required? Held-"No" matter of common
sense when the stay order was operation
how can a construction be completed
within one year- order passed by the
authorities quashed- Petition allowed
with cost of Rs.20,000/-.

Held- Para 5

It is evident from the perusal of the
three impugned orders that they are
based
on
the
premise
that
the
construction
on
the
strength
of
sanctioned
map
under
the
U.P.
Municipalities Act ought to have been
completed within a period of one year or
in any case prior to the enforcement of
the
Act.
This
approach
is
totally
perverse. The further finding of the
authors of the three impugned orders is
that there is no provision that in case the
on going constructions are stopped by
any authority in purported exercise of
powers, the duration of stay for which
the construction was stopped, would be
immaterial for computing the period of
one year as provided under sub-clause
(2)
of
section
181
of
the
U.P.
Municipalities Act. This finding is also
perverse. It is a matter of common sense
that if an act was initiated within the
specified period, the stoppage time in
view of intervention through stay orders
would have to be excluded. In that view
of the matter, the three impugned orders
are totally perverse and it appears have
been passed with malafide intention to
cause
harassment
and
loss
to
the
petitioner.

(Delivered by Hon'ble D.P. Singh, J.)

1. The present writ petition arises
out of proceedings under section 10 of the
U.P. Regulation of Building Operation
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2 All] Shri Janardan Chaturvedi V. The Chancellor, Chandra Shekhar Azad University of Agriculture & others 351
Act, 1958 by which the orders passed for
demolition of the constructions of the
petitioner have been challenged.

2. The petitioner vide a registered
agreement dated 15.4.1975 had purchased
plot no. 146/1 having an area of 3 biswas
and 10 dhurs. After the aforesaid purchase
the petitioner moved an application under
section 180 of the U.P. Municipalities Act
for sanction of the plan for construction.
This sanction was granted by the
Municipal Board vide its order dated
25.2.1982. It is submitted that the
constructions started in February/March,
1982. One Kapildeo Gupta moved an
application under section 133 Cr.P.C. in
respect of the construction on 20.1.1983
and the Sub-Divisional Magistrate vide its
order
dated
25.1.1983
directed
for
registering a case and issued notices to the
petitioner. During the proceedings, the
Naib-Tehsildar submitted its report dated
11.4.1983, which report was in favour of
the petitioner and thus the proceedings
were dropped vide order dated 21.3.1984.
In the meanwhile U.P. Regulations of
Building Operation Act, 1958 (hereinafter
referred to as the Act) came into force in
district Basti on 14.10.1983. Again one
Ram Chandra father of the respondent
no.5 filed a suit no.67 of 1985 for
injunction and demolition of the disputed
construction. After the petitioner filed his
reply, the trial court vide its order dated
2.4.1985 refused the interim injunction.
An appeal against the aforesaid order was
also dismissed on 16th May, 1985. The
suit itself was dismissed in 1987.
Thereafter, the respondent no. 5 son of the
plaintiff of suit no.67 of 1975 made an
application dated 7.5.1985 before the
Prescribed Authority claiming that the
petitioner was constructing his house in a
regulated area without sanction of map.
On issuance of show cause notice under
section 10 of the Act dated 30.5.1985, the
petitioner filed a detailed objection
against the said notice. The Prescribed
Authority vide its order dated 30.7.1986
held that the petitioner did not possess
sanctioned
map
and,
therefore,
the
constructions going on were illegal.
Against the aforesaid order, the petitioner
filed an appeal before the Controlling
Authority which vide its order dated
29.8.1986 after coming to the conclusion
that there was sanctioned map remanded
the matter back to the Prescribed
Authority. Against the aforesaid, the
respondent no. 5 filed a revision under
section 15-A of the Act, which was
allowed vide order dated 24.1.1987 and
the case was remanded before the
Controlling Authority. After remand the
Controlling Authority again deliberated
upon the matter and came to the
conclusion as earlier and again remanded
the matter vide order dated 16.6.1987
before the Prescribed Authority. Yet again
the respondent no. 5 filed revision against
the order dated 16th June, 1987 and again
the government vide its order dated 21st
August, 1987 remanded the matter to the
Controlling Authority. On second remand
the Controlling Authority vide his order
dated 15th September, 1988 dismissed the
appeal of the petitioner and confirmed the
order of the Prescribed Authority dated
30.7.1986. It held that the order of the
government was clear that the sanctioned
map of the petitioner had expired on
25.8.1983 and further that there is no
provision in the Municipalities Act that if
the construction was stopped by a stay
order, the duration of validity of the map
would automatically stand extended. The
petitioner thus filed a revision before the
State
Government
which
has
been
dismissed
by
an
order
dated
3rd
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
352
December, 1988. It are these orders dated
30.7.1986,
15.9.1988
and
3.12.1988
which are under challenge before this
court.

3. Learned counsel for the petitioner
has urged firstly that in pursuance of the
sanctioned map the petitioner had started
construction which was stopped by
different
authorities,
therefore,
the
validity of the map had not expired.
Secondly, he submits that once the map
had been sanctioned and construction
started, there was no necessity for the
petitioner
to
apply
again
on
the
enforcement of the Act in district Basti.

4. In order to appreciate the
contention of the petitioner, it would be
necessary to quote sections 180 and 181
of the U.P. Municipalities Act:

"180. Sanction of work by
board- (1) Subject to the provisions
of any bye-law the board may either
refuse to sanction any work of which
notice has been given under section
178 or may sanction it absolutely or
subject to-

(a) any written direction that the board
deems fit to issue in respect of all or
any of the matters mentioned in subhead (h) of heading A of section
1298, or

(b) a written direction requiring the
setback of the building or part of a
building to the regular line of the
street prescribed under section 222,
or, in default of any regular line
prescribed under that section, to the
line of frontage of any neighboring
building."

"181. Duration of sanction- (1) A
sanction given or deemed to have been
given by a board under section 180 shall
be available for one year or for such lesser
period as may be prescribed by bye-law
unless it is extended by the Board for a
further period up to one year.

(2) After the expiry of the said period
the
proposed
work
may
not
be
commenced except in pursuance of a
fresh sanction applied for and granted
under the same section."

5. A bare perusal of section 181 subclause (2) shows that the validity of one
year from the date of sanction of the map
relates only to the commencement of the
constructions and not its completion. It is
undisputed that the map was sanctioned
on
25th
February,
1982.
The
Sub
Divisional Magistrate in his order dated
25th January, 1983 has held on the basis
of the report filed before him that the
petitioner was constructing the house on
the disputed plot. This fact is evident from
a perusal of the order of the SubDivisional Magistrate dated 25th January,
1983 which is annexed as Divisional
Magistrate had got the disputed spot
examined by the Naib Tahsildar who in
paragraph 3 of his report dated 11.4.1983
has confirmed that the construction on the
spot had started prior to 25th January,
1983. These documents have neither been
controverted nor their authenticity has
been questioned by respondents. Thus, it
is evident, that on the basis of sanction of
map dated 25.2.1982, constructions had
already started on the spot prior to
25.1.1983 i.e. before the period of one
year had expired. I am of the opinion, that
in view of sub-clause (2) of section 181 of
the U.P. Municipalities Act, the petitioner
had started construction on the basis of a
http://www.allahabadhighcourt.nic.in
2 All] Pradeep Kumar Pandey V. Sanjukta Sachieu U.P. Shashan Avas Anubhag-3 and others
353
sanctioned map and his construction was
saved by the aforesaid clause of subsection (2) of section 181. There is no
provision under the Act by which any
construction which had started on the
strength of sanctioned map under the
Municipalities Act, fresh sanction was
necessary on the enforcement of the Act.
It is evident from the perusal of the three
impugned orders that they are based on
the premise that the construction on the
strength of sanctioned map under the U.P.
Municipalities Act ought to have been
completed within a period of one year or
in any case prior to the enforcement of the
Act. This approach is totally perverse.
The further finding of the authors of the
three impugned orders is that there is no
provision that in case the on going
constructions are stopped by any authority
in purported exercise of powers, the
duration
of
stay
for
which
the
construction was stopped, would be
immaterial for computing the period of
one year as provided under sub-clause (2)
of section 181 of the U.P. Municipalities
Act. This finding is also perverse. It is a
matter of common sense that if an act was
initiated within the specified period, the
stoppage time in view of intervention
through stay orders would have to be
excluded. In that view of the matter, the
three impugned orders are totally perverse
and it appears have been passed with
malafide intention to cause harassment
and loss to the petitioner.

6. As noted above, while detailing
the facts, first the father of respondent no.
5 and now the respondent no. 5 has been
able to stall the construction activity. The
petitioner, and rightly so, contends that he
has suffered a huge monetary loss by the
unnecessary intervention of the father of
respondent no. 5 and then the respondent
no. 5. First the father of respondent no. 5
filed a suit and failed to get any interim
injunction,
therefore,
gets
his
suit
dismissed. Then again starts proceedings
under the Act. The counsel for the
respondent no. 5 has been unable to show
any provision under the Act which entitles
him to make any such application for
stopping the construction. He appears to
be a resourceful man. Twice the Chief
Controller taking a reasonable view had
remanded the matter to the Prescribed
Authority but on both occasions, the
respondent no. 5 was able to get orders
from the State Government in revision.
The respondent no. 5 has been unable to
show as to how and in what manner the
constructions were visiting him with any
consequence. The respondent no. 5 also
does not appear to be a public spirit man
who puts his mite for a public cause. In
my opinion, the respondent no. 5 by his
actions has definitely caused much harm
to the petitioner both monetarily and in
terms of harassment.

7. In view of the discussions above,
the petitioner is entitled to costs of this
petition, which I assess on the basis of
institution
of
proceedings
by
the
respondent no. 5, the time lapsed and
increase in the costs of construction to a
sum of Rs.20,000/-

8. In the result, the writ petition
succeeds and is allowed and the impugned
orders dated 30.07.1986, 15.9.1988 and
3.12.1988 are hereby quashed. The
petitioner
is
entitled
to
receive
Rs.20,000/- as costs from respondent no.
5. The said costs, if not paid within a
period of one month from today, the same
shall be recovered by the Collector, Basti
as arrears of land revenue and after
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
354
recovery the same should be paid to the
petitioner.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25 FEBRUARY, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 4237 of 2003

Satish Chandra Srivastava and others

 ...Petitioners
Versus
The State of U.P. through Secretary
(Homes) and others
 ...Respondents

Counsel for the Petitioners:
Sri T.P. Singh
Sri Anupam Kumar

Counsel for the Respondents:
Sri Krishna Murari
Ms. Bharti Sapru

U.P. Appointment of (Asstt. Prosecution
Officer) Rules 1974 Rule-25 readwith
U.P. Regularisation on the Post of Adhoc
Appointments (on the Posts within the
preview
of
the
Public
Service
Commission
Rules,
1984.
Seniority
A.P.Os. appointed in 1977-78 on Adhoc
basis- regularised w.e.f. 22.3.84- and
these A.P.Os. who were appointed by
Public Service Commission on 23.4.84.
Hon'ble Supreme Court already held that
adhoc appointee shall be deemed to be
appointed on 17.4.85- as such those who
were appointed by Commission shall be
Senior to these of Adhoc AppointeeTherefore
the
remaining
regular
candidate also shall be senior without
being prejudice with facts that they have
joined after 17.4.85- court held-once the
question of seniority decided by Hon'ble
Supreme
Court
became
final
every
authority is bound by the same-can not
be reopened by any one.

Held- Para 14

As
observed
therein,
the
adhoc
appointment will be deemed to have
been appointed from 17.4.85. Hence the
Assistant Prosecution Officers selected
through the Commission before 17.4.85
will
become
senior
to
such
adhoc
appointees, but those selected by the
Commission after 17.4.85 will be junior
to the adhoc appointees. This is clear
from the aforesaid judgment of the
Supreme Court. Hence if a select list was
prepared by the Commission prior to
17.4.85, even though appointments were
given after 17.4.85, such appointees
would be senior to the adhoc appointees
who were regularized with effect from
17.4.85 by the aforesaid judgment. The
Supreme Court judgment is binding on
all Courts and authorities under Article
141 of the Constitution. Even though
there were only 5 appellants before the
Supreme Court the law laid down therein
is of a general nature and hence will
apply to all.
Case law discussed:
1997 (2) SCC 6308

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

1. This writ petition has been filed
for a writ of certiorari to quash the
impugned seniority list dated 2.1.2003
Annexure-2 to the writ petition issued by
the State of U.P. communicated by means
of letter dated 6.1.2003 Annexure-1 to the
writ petition and also the reversion order
dated 6.10.2003 Annexure-3 to the writ
petition. The petitioners have also prayed
for
a
mandamus
directing
that
respondents should not interfere in the
working as Prosecution Officer and
should pay them salary accordingly.