# Shanker Shahi v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1660
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-26
- **Case number:** Writ- C No. 1438 of 2019
- **Bench:** Shashi Kant Gupta, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanker-shahi-v-state-of-u-p-ors-44625
- **Pages:** 6

## Headnote

A. Constitution of India - Articles 12 and
226 - Maintainability of Writ - Writ
petition against private person, who is
not the State within meaning of Article
12, is not maintainable. (Para 11)

B. Urban Planning & Development Act,
1973 - Section 33 - Scope of Writ - No
2 All. Shanker Shahi Vs State of U.P. & Ors.
1661
statutory obligation caste upon authority to
enforce
UP
Apartment
(Promotion
of
Construction, Ownership & Maintenance) Act
- Relief as claimed in representation cannot
be granted by the authority. (Para 9 & 10)

Writ Petition dismissed (E-1)

## Text

1660 INDIAN LAW REPORTS ALLAHABAD SERIES
holding
the
revision
to
be
not
maintainable.
No
finality
could
be
attached to an order of the trial court in
proceedings under Section 115P, by
referring to or taking shelter of sub
section 7 of Section 123 C of the Act.

9. Counsel appearing for the respondent
no. 5 has tried to support the impugned order
by submitting that the allotment was in
accordance with law and that the initial order
of cancellation of the allotment obtained in the
year 2003 had been so obtained by
misrepresentation of facts. The High Court
therefore, in exercise of its equity jurisdiction
should not interfere in the matter.

10. I have considered the submission
made by counsel for the parties and
perused the record.

11. I find merit in the submission of
counsel for the petitioners that the Board
of Revenue has wrongly held the revision
filed by the petitioner to be not
maintainable. It is not in dispute and is
conceded by counsel for respondent no. 5
that the proceedings wherefrom the writ
petition arises under Rule 115 P. It is also
correct that the order of preference
provided for allotment under Section
123C of the U.P.Z.A. & L.R. and under
Rule 115 L and M are clearly different.
An allotment made under B/122C can be
cancelled, exercising powers conferred by
Section 122C(4) which an allotment made
under Rule 115L or 115M can be
cancelled on a complaint under Rule
115P.

12.
Under
the
circumstances,
therefore the two proceedings cannot be
equated to each other and for this reason
alone, sub section 7 of section 123C has
no application to proceedings under Rule
115 P. For this reason alone, the
impugned order cannot be sustained and
is hereby set aside.

13. The matter is remanded back to the
Board of Revenue to decide the revision on
its merits after hearing all concerned.

14. It is also provided that this
exercise be completed expeditiously,
preferably within a period of three months
from the date a certified copy of this order
is filed before the Board of Revenue.

15. No costs.
----------

(2019)10ILR A 1660

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2019

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
HON'BLE PANKAJ BHATIA, J.

Writ- C No. 1438 of 2019

Shanker Shahi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.R. Tiwari

Counsel for the Respondents:
C.S.C., Sri Devi Prasad Mishra, Sri Arun Kumar

A. Constitution of India - Articles 12 and
226 - Maintainability of Writ - Writ
petition against private person, who is
not the State within meaning of Article
12, is not maintainable. (Para 11)

B. Urban Planning & Development Act,
1973 - Section 33 - Scope of Writ - No
2 All. Shanker Shahi Vs State of U.P. & Ors.
1661
statutory obligation caste upon authority to
enforce
UP
Apartment
(Promotion
of
Construction, Ownership & Maintenance) Act
- Relief as claimed in representation cannot
be granted by the authority. (Para 9 & 10)

Writ Petition dismissed (E-1)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The petitioner has filed the
present petition seeking the following
reliefs:

"(1) Issue a writ, order or
direction in the nature of mandamus
commanding the respondent No. 3 to
consider
and
decide
the
representation/application submitted by
petitioner dated 15.12.2008 (Annexure
No. 6 to this writ petition), within a time
framed period as may be deemed by this
Hon'ble Court.

(2) Issue another writ, order or
direction in the nature of mandamus
restraining the authority from allotting
the agreed Flat No. 401, 4th Floor, BlockC, Tulsiani Square, Phase-II, Civil Lines,
Allahabad,
to anybody
else
during
pendency
of
the
claim before
the
respondent No. 3."

2. The facts, in brief, are that the
petitioner entered into an agreement to
sell with respondent no. 4 on 20.6.2013
with regard to Flat No. 401, 4th Floor,
Block-C, Tulsiani Square, Phase-II, Civil
Lines, Allahabad and the petitioner paid a
sum of Rs. 32,55,647/- and the balance
amount of Rs. 37,44,353/- was to be paid
by the petitioner on completion of the flat
in question. It is alleged that the
respondent
no.
4-company
has
not
completed the construction work of the
flat within the stipulated time and despite
the work not being completed, the
respondent-4-company issued a letter
dated 30.8.2018 to the Chief Manager,
Bank of Baroda for remitting of the
balance amount of Rs. 37,00,000/-. The
petitioner has made allegations that the
fourth respondent is not taking steps for
completion of the construction and as
such the petitioner made a representation
before the respondent no. 3 who has not
taken any step thereupon.

3. Learned counsel for the petitioner
has argued that statutory duties are cast
upon respondent no. 3 under section 15(9)
of the Uttar Pradesh Urban Planning and
Development
Act,
1973
(hereinafter
referred to as the 'Act'). Reliance is also
placed upon Uttar Pradesh Apartment
(Promotion of Construction, Ownership &
Maintenance) Act, 2010 to stress that in
terms of the statutory duty cast upon the
respondent no. 3, the respondent no. 3 is
bound to pass an order and take steps for
the reliefs as claimed by the petitioner in
its representation dated 15.12.2018. On
14.2.2019, this Court while entertaining
the petition had directed the petitioner to
serve
the
respondent
no.
4.
Supplementary affidavit has been filed
stating that the services were effected on
the respondent no. 4, however, respondent
no. 4 has not put in appearance and no
counter
affidavit
was
filed.
The
respondent no. 3 has filed a short counter
affidavit stating that the respondent no. 3
is
not
empowered
to
enforce
the
contractual obligations as prayed by the
petitioner. It has been further highlighted
that the petitioner should approach the
authority
under
the
Real
Estate
Regulatory Authority Act (in short
'RERA' Act) for redressal of his grievance
and have thus argued that the writ petition
is not maintainable and is liable to be
dismissed.
1662 INDIAN LAW REPORTS ALLAHABAD SERIES

4. We had confronted with the
counsel for the petitioner as to how the
writ petition, which is essentially seeking
relief against a private respondent, is
maintainable.

5. The counsel for the petitioner has
vehemently argued that in terms of the
provisions of Section 33 of the Urban
Planning and Development Act, 1973, the
respondent no. 3 is empowered to take
action for the relief as claimed by the
petitioner.
We
have
perused
the
representation
dated
15.12.2018
(Annexure-6 to the writ petition) given by
the petitioner, as prayed, is as under:

"अतः जनवेदन करना है जक अपने
स्तर े मामले की िॉच कराकर उपरोक्त
"मे च तुल्सीयानी डवलप च" े प्राथी को प्लैट
 िं० 401, चौथी मिंजिल, ब्लाक- ी तुल्सीयानी
स्कवैर, जद्वतीय फेि, का कब्जा अध्या न
बिररये पिंिीकृत बैनामा जदलाये िाने तथा वर्च
2013 े प्राथी द्वारा प्रजतपक्षी के मक्ष िमा की
गयी धनराशी पर 25 प्रजतशत/प्रजतवर्च, की दर
 े ब्याि जदलाये िाने की कृपा करें। प्राथी
 मस्त बकाया देयकोिं का भुगतान जदनािं
क20.06.2013 को जकये गये इकरारनामें की
शतें के अनु ार प्रजतपक्षी ब्यूल्डर को करने को
 दैव तत्पर है और रहेगा। पूवच में जदये गये
प्राथचना पत्रोिं की प्रजतजलजप िंलग्न है।"

6. Considering the request made by
the petitioner before the respondent no. 3
as well as the reliefs claimed in the
present writ petition, the first question to
be decided is whether the writ petition
would be maintainable for the reliefs
claimed before this Court. Respondent no.
4, admittedly, is a private builder, under
the
U.P.
Urban
Planning
and
Development Act, 1973, it is obligatory
upon the respondent no. 4 to carry out the
development of the land after seeking
permission of the development authority
under Sections 14 and 15 of the Act. The
Development Authority in pursuance of
the powers conferred under the Act is
empowered to see that the development is
carried out in terms of the permission
given and the plan sanctioned under
section 15 of the U.P. Urban Planning and
Development Act, 1973.

7. Learned counsel for the petitioner
has stressed on Section 33 of the Act
confers the powers. Section 33 of the Act
is quoted here-in-below:

"33. Power of the Authority to
provide amenity or carry out development
at cost of owner in the event of his default
and the levy cess In certain cases.-

(1) If the Authority, after
holding a local inquiry or upon report
from any of its officers or other
information in its possession, is satisfied
that any amenity in relation to any land in
a development area has not been provided
in relation to that land which, in the
opinion of the Authority, ought to have
been or ought to be provided, or that any
development of the land for which
permission approval or sanction had been
obtained under this Act or under any law,
in force before the coming into force of
this Act has not been carried out, it may,
after affording the owner of the land or
the person providing or. responsible for
providing the amenity a reasonable
opportunity to show cause, by order
require him to provide the amenity or
carry out the development within such
time as may be specified in the order.

(2) If any amenity is not
provided or any such development is
carried out within the time specified in the
order, then the Authority may itself
2 All. Shanker Shahi Vs State of U.P. & Ors.
1663
provide the amenity or carry out the
development or have provided or carried
out through such agency as it deems fit:

Provided that before taking any
action
under
this
sub-section,
the
Authority shall afford a reasonable
opportunity to the owner of the land or to
the person providing or responsible for
providing the, amenity to show cause as
to why such action should not be taken.

(3) All expenses incurred by the
Authority or the agency employed it in
providing the amenity or carrying out the
development together with interest at such
rate as the State Government may by
order fix from, the date when a demand
for the expenses is made until payment
may be recovered by the Authority from
the owner or the person providing or
responsible for providing the amenity as
arrears of land revenue, and no suit shall
lie in the Civil Court for recovery of such
expenses.

(4) Notwithstanding anything
contained in the foregoing sub-section
where the Authority on the written
representation by so many of the owners
of any land in a development area as
represent not less than one and half of the
area,of that land is satisfied that any
amenity in relation to such land has not
been provided, which in the opinion of the
Authority ought to be provided, or that
any development of that land for which
permission, approval or sanction had been
obtained under this Act or under any law
in force before the 2[commencement of
this Act] has not been carried out, it may
itself provide the amenity or carry out the
development or have it provided or
carried out such agency as it deems fit,
and recover the expenses by levy of cess
from all the owners of the said land :

Provided that if the owners
making the said representation contend
that the amenity had been agreed to be
provided or the development had been
agreed to be carried out by a coloniser or
co-operative housing society through or
from whom the land was acquired by
them, they shall file with the Authority a
copy of such agreement, or of the deed of
transfer or of the bye-laws of the society
incorporating such agreement, and no
action shall be taken by the Authority
under this sub-section unless notice has
been given to the coloniser of the society,
as the case may be, to show cause why
such action should not be taken:

Provided further that where the
Authority is satisfied that the coloniser or
the society has become defunct or is not
traceable, no notice under the last
preceding proviso need be issued.

1[(4-A) Where the authority
provides
any
amenity
in
an
area
developed by it the authority shall, till the
responsibility for maintenance is assumed
by the local authority as provided in
Section 34, be entitled to recover, in the
manner prescribed, from the owner of
land or building, such charges therefor as
may be fixed by the State Government, by
a notified order, having regard to the
expenses incurred for maintaining and
continuing to provide such amenity.]

(5) The cess referred to in Subsection (4) shall be equivalent to the
expenses incurred by the Authority or the
agency employed by it in providing the
amenity or carrying out the development,
together with interest at such rate as the
State Government may by order fix, from
the date of completion of the work until
payment, and shall be assessed land
levied on all the owners of the land in
proportion to the respective areas of land
owned by them.

(6) The said cess shall be
payable in such number of installments,
1664 INDIAN LAW REPORTS ALLAHABAD SERIES
and each installment shall be payable at
such time and in such manner, as the
Authority may fix, any arrear of cess shall
be recoverable as arrears be land revenue,
and no suit shall lie in the Civil Court for
recovery thereof.

The expenses incurred by the
Authority or the agency employed by it
under this section shall be certified by the
Authority; and such certificate as also the
assessment of the cess, if any under Subsection (5) shall be final.

If under any agreement between
the owners of the land and the coloniser or
the society referred to in Sub-section (4) the
responsibility for providing the amenity or
carrying out the development rested with
such coloniser or society, the cess Payable
under the sub-section by the owners shall be
recoverable by them from the coloniser or
the society, as the case may be."

8. A bare perusal of the Section 33
makes it clear that the power is conferred
in relation to amenities which are to be
provided with regard to any land in a
development area which are provided for
in the sanctioned map but not undertaken,
in such an eventuality, the Authority
under the Act is empowered to ensure that
the amenities as sanctioned in the map but
not provided by the person responsible for
doing so can be compelled to provide the
said amenities or in default the Authority
itself is empowered to carry out to
provide such amenity after giving an
opportunity of hearing to the owner of the
land in question. The reliefs claimed by
the petitioner in his representation are that
the developer be directed to give the
possession of the flat in question by
executing the requisite deeds and for
refund of the money deposited by the
petitioner along with interest at the rate of
25% even in the present writ petition. The
relief claimed relates to Flat No. 401.

9. We are afraid that the reliefs
claimed
by
the
petitioner
in
the
representation as well as before this Court
do not fall within the scope of powers
conferred under Section 33 of the Act.
Learned counsel for the petitioner has
then relied upon the provision of Section
7 of the Uttar Pradesh Apartment
(Promotion of Construction, Ownership &
Maintenance) Act, 2010. Statement of
objects and reasons of the Uttar Pradesh
Apartment (Promotion of Construction,
Ownership & Maintenance) Act made it
clear that the said Act was framed to
provide ownership of an individual
apartment in a building and of undivided
interest in the common areas and facilities
appurtenant to such apartment and to
make such apartment heritable and
transferable Section 7 of the said Act
clearly provides that the individual
apartment
shall
be
heritable
and
transferable together with the undivided
interest in the common areas and facilities
appurtenant to such apartment. The said
Act also provides for the rights and
obligations of the apartment owners as
well as the duties and liabilities of the
promoters. No statutory obligation is cast
upon the respondent no. 3 under the said
Act for enforcing the provision of Uttar
Pradesh
Apartment
(Promotion
of
Construction, Ownership & Maintenance)
Act.

10. We have perused the Act and see
nothing which casts statutory duty on the
respondent no. 3 either under the RERA
Act or the U.P. Urban Planning &
Development Act for grant of relief as
claimed
by
the
petitioner
in
his
2 All. M/s Triveni Engineering & Industries Vs State of U.P. & Ors.
1665
representation before the respondent no.
3.

11. The writ petition is an attempt to
settle a private dispute with the respondent
no. 4 under Article 226 of the Constitution
of India and the averments made in the writ
petition as well as the argument are nothing
but a disguised attempt to rope the
respondent no. 3 for settlement of a private
dispute with the respondent no. 4. It is well
settled
that
a
writ
petition
is
not
maintainable against a private respondent.
The relief claimed in the petition as well as
before the respondent no. 3 is essentially a
private dispute with the respondent no. 4
who is not the State within the meaning of
Article 12. Thus, the writ petition is not
maintainable for the reliefs claimed and is,
accordingly, dismissed.

12. The petitioner may avail of such
remedy as may be available to him before
any other adjudicatory forum.

13. The petition is dismissed.
----------

(2019)10ILR A 1665

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 60572 of 2011

M/s Triveni Engineering & Industries
Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.D. Singh, Sri Diptiman Singh.

Counsel for the Respondents:
C.S.C., Sri Anoop Trivedi, Sri Ram
Prakash.

A. Labour law - Sugar Factories Standing
Order notified under Section 3 (b) of the
U.P. Industrial Disputes Act, 1947 - Clause
K - Claim of Re-employment - To claim Reemployment as a seasonal workman the
factum of having worked for whole of
second half of last preceding season is
necessary. (Para 36)
B. Labour law - Sugar Factories Standing
Order - Clause A5 - Meaning of expression
''season'' - Expression ''season'' means the
period commencing from the date when
the crushing commences till the date when
the crushing ends. (Para 14)
Held -
14. ... The conditions of service of workmen
engaged in the petitioner's sugar unit are governed
in terms of the Sugar Factories Standing Orders
notified under Section 3 (b) of the U.P. Industrial
Disputes Act, 1947. Clause A5 of the Sugar
Factories Standing Orders defines the expression
''season'' as meaning the period commencing from
the date when the crushing commences till the date
when the crushing ends. The classification of
workmen is provided for under Clause B which
includes seasonal workmen as one of its categories
and the expression ''seasonal workman'' has been
defined under Clause B (II).
C. Rule of Evidence - Burden of proof - It
is the legal obligation on a party to prove
allegation made by him - Principle is
associated
with
maxim
'Semper
necessitas probandi incumbit ei qui agit'
which means the burden of proof is on
the claimant - Held, Burden of proof is
clearly on the workman to establish his
entitlement. (Para 32 & 39)
Held :-
39. The burden of proof in this regard is
clearly on the workman in order to establish