# Shyam Sundar Agarwal v. State of U.P. and another

- **Citation:** (2009) 2 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-26
- **Case number:** Civil Misc. Writ Petition No. 10151 of 2009
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-sundar-agarwal-v-state-of-u-p-and-another-41382
- **Pages:** 5

## Headnote

U.P. Urban Planning & Development Act,
1973-Section 37-Order passed by the
chairman under appeal-final-can not be
questioned before civil court-refusal of
interim order by Trail Court proper-when
suit itself not maintainable-No question
of
interim
order-moreover
the
Vice
Chairman passed demolition order after
hearing
petitioner-still
running-Civil
Suit-held-not maintainable.

Held: Para 11

Since I have held that original suit
instituted
by
the
petitioner
is
not
maintainable and liable to be dismissed,
therefore, the said suit stands dismissed.
Accordingly the Registrar General of this
Court is directed to communicate this
order forthwith to the District Judge,
Kanpur Nagar who shall place the order
on the record of the suit in question and
350 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
concerned court is directed to consign
the record of the case to the office.
Case law discussed:

## Text

2 All] Shyam Sundar Agarwal V. State of U.P. and another
349
of no ambiguity, recourse to the statement
of objects and reasons for the purpose of
construing a statutory provision is not
permissible. According to us, in the
instant case when the tenure of the
members, being the petitioners, was
unaltered in two consecutive amendments
i.e. U.P. Act No. 22 of 2007 and U.P. Act
No. 4 of 2008 and initially no challenge
was thrown in respect of such fixation of
tenure, in the garb of the writ petition the
challenge of enhancement of tenure of the
Chairman can not be made. In 1963 SCR
(Supp.) 112 (The Gujarat University,
Ahmedabad Vs. Krishna Ranganath
Mudholkar and others) it has been held
by the Supreme Court that the statements
of objects and reasons of a statute may
and do often furnish valuable historical
material in ascertaining the reasons which
induced the legislature to enact a statute,
but in interpreting the statute they must be
ignored.

19. However, we are of the view that
in the present case promulgation of the
Act in question is not an administrative
action but a legislative action and no case
of lack of legislative competence is
available to us. The remaining question is
whether the action is violative of any
fundamental right guaranteed in Part III of
the
Constitution
or
any
other
constitutional provision or not. Since the
right of the petitioners is statutory right
and can not be said to be a constitutional
right and as such, fixation of tenure of
service, which was not interfered with
earlier enactment but tenure of Chairman
has been increased, can not at all be said
to be violative of fundamental rights
guaranteed in Part-III of the Constitution
or any other constitutional provision, if
any, available to the petitioners/Members.

20. Hence, in totality we do not find
any case on the part of the petitioners,
therefore, the writ petition is liable to be
dismissed and is accordingly dismissed,
however, without imposing any cost.
Interim order, if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 10151 of 2009

Shyam Sundar Agarwal
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Singh

Counsel for the Respondents:
Sri S.K. Mishra
S.C.

U.P. Urban Planning & Development Act,
1973-Section 37-Order passed by the
chairman under appeal-final-can not be
questioned before civil court-refusal of
interim order by Trail Court proper-when
suit itself not maintainable-No question
of
interim
order-moreover
the
Vice
Chairman passed demolition order after
hearing
petitioner-still
running-Civil
Suit-held-not maintainable.

Held: Para 11

Since I have held that original suit
instituted
by
the
petitioner
is
not
maintainable and liable to be dismissed,
therefore, the said suit stands dismissed.
Accordingly the Registrar General of this
Court is directed to communicate this
order forthwith to the District Judge,
Kanpur Nagar who shall place the order
on the record of the suit in question and
350 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
concerned court is directed to consign
the record of the case to the office.
Case law discussed:

(Delivered by Hon'ble Sabhajeet Yadav, J.)

With the consent of the learned
counsel appearing for the parties the case
is heard afresh for disposal. Heard learned
counsel for the petitioner and Sri S.K.
Mishra learned counsel appearing for the
respondent no.1 and perused the record.

2. It is not in dispute that against the
order of demolition dated 13.10.2006 and
demolition
seizure
dated
28.11.2006
prepared by the Vice Chairman of Kanpur
Development
Authority
(hereinafter
referred to as 'Development Authority')
under Section 27 (1) of U.P. Urban
Planing and Development Act (herein
after referred to as the Act, 1973) the
petitioner has instituted suit for permanent
injunction and also moved application
therein for temporary injunction. The
temporary injunction application has been
rejected by the Trial Court after hearing
the parties on merit and appeal preferred
against which by the petitioner has also
has been dismissed, hence this petition.

3.

While
raising
preliminary
objection against the maintainability of
writ
petition
learned
counsel
for
Development Authority has submitted
that against the order of demolition passed
by Vice Chairman of Development
Authority under Section-27(1) of the
Act,1973 , the petitioner has an alternative
remedy of statutory appeal under Section-
27 (2) of the said Act before the Chairman
of Development Authority and under
Section 27 (3) of the Act the Chairman of
the Development Authority is empowered
to stay the execution of an order against
which an appeal is preferred before him
under Section 27 (2) of the said Act. It is
also contended that the decision of
Chairman on appeal and subject only to
such decision an order under sub-section
(1) shall be final and shall not be
questioned in any court in view of
provisions of sub-section-4 of Section-27
of the said Act. He further submits that
not only this but Section-37 of the Act,
1973 also postulates that except as
provided in Section-41 of the said Act
every decision of Chairman on appeal and
subject to any decision on an appeal (if it
lies and is preferred), the order of Vice
Chairman or other Officer under Section15 or Section-27 of the Act shall be final
and shall not be questioned in any court.

4. On the basis of indisputable facts
on record, learned counsel appearing for
the Development Authority has submitted
that so long as the orders passed by Vice
Chairman of Development Authority
dated 13.10.2006 and 28.11.2006 which
have been passed after affording an
opportunity of hearing to the petitioner as
transpires from the record, are not setaside by any competent authority or court
of law, the Civil court would not be
capable of granting temporary injunction
or permanent injunction in favour of the
petitioner as the aforesaid orders could
not be challenged before the Civil court
on account of express bar created by
Section-27(4) and Section-37 of the
Act,1973 and would ultimately come in
the way of Civil court. Therefore, this
Court
in
exercise
of
supervisory
jurisdiction under Article-226-227 of the
Constitution of India against refusal of
temporary injunction should not grant any
relief in favour of the petitioner as in
given facts and circumstances of the case
both the courts below cannot be held to
2 All] Shyam Sundar Agarwal V. State of U.P. and another
351
have committed any illegality in refusing
to grant temporary injunction in favour of
the
petitioner.
In
my
opinion
the
submissions of learned counsel for the
respondent
appears
to
have
some
substance.

5. Contrary to it, the learned counsel
for the petitioner has submitted that since
the repair work undertaken by the
petitioner was not required any prior
permission or approval or sanction by the
officer
of
Development
Authority,
therefore, the provisions of the Act,1973
would not be attracted in view of saving
clause provided under Section-52 of the
Act,1973 thus impugned order passed by
Vice Chairman referred above is nullity
and nonest, as such can be ignored by
Civil court while granting temporary
injunction in favour of petitioner. In my
opinion the submission of learned counsel
for the petitioner appears to be misplaced
and has to be rejected.

6. Section-27 of the Act, 1973 deals
with the order of demolition of building,
which reads as under:

"Section-27.
(1)
Where
any
development has been commenced or is
being carried on or has been in
contravention of the master plan or
zonal development plan or without the
permission,
approval
or
sanction
referred
to
in
Section
14
or
contravention of any conditions subject
to which such permission, approval or
sanction has been granted, in relation to
the development area, then, without
prejudice to the provisions of Section 26,
the Vice-Chairman or any officer of the
Authority empowered by him in that
behalf may take an order directing that
such development shall be removed by
demolition, filling or otherwise by the
owner thereof or by the person at whose
instance
development
has
been
commenced or is being carried out or
has been completed, within such period
not being less than fifteen days and more
than forty days from the date on which a
copy of the order of removal, with a brief
statement of the reasons therefor, has
been delivered to the owner or that
person as may be specified in the order
and on his failure to comply with the
order, the Vice Chairman or such officer
may remove or cause to be removed the
development, and the expenses of such
removal
as
certified
by
the
Vice
Chairman or such officer shall be
recoverable from the owner or the
person
at
whose
instance
the
development was commenced or was
being carried out or was completed as
arrears of land revenue and no suit shall
lie in the civil court for recovery of such
expenses:
Provided that no such order shall be
made unless the owner or the person
concerned has been given a reasonable
opportunity to show cause why the order
should not be made.
(2) Any person aggrieved by an order
under sub-section (1) may appeal to the
Chairman against that order within
thirty days from the date thereof and the
Chairman may after hearing the parties
to the appeal either allow or dismiss the
appeal or may reverse or vary any part of
the order.
(3) The
Chairman
may
stay
the
execution of an order against which an
appeal has been filed before it under
sub-section(2).
(4) The decision of the Chairman on
the appeal and, subject only to such
decision, the order under sub-section (1),
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
shall be final and shall not be questioned
in any court.
(5) The provisions of this section shall
be in addition to, not in derogation of,
any
other
provision
relating
to
demolition of building contained in any
other law for the time being in force."

7. Section-37 of the Act, 1973 deals
with the finality of decision, which reads
as under:

"Section-37- Except as provided in
Section
41,
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 ViceChairman or other officer under Section
15, or Section 27, shall be final and shall
not be questioned in any court."

8. Section-52 of the Act,1973 deals
with the saving of certain activities which
exclude the application of the provisions
of said Act as under:

"Section-52 -Savings-Nothing in
this Act shall apply to-
(a) the carrying out of works for the
maintenance, improvement or other
alterations of any building, being works
which affect only the interior of the
building or which do not materially
affect the external appearance of the
building.
(b) the carrying out by any local
authority or by any department of
Government of any works for the
purpose of inspecting, repairing or
renewing any drains, sewers, mains,
pipe, cables or other apparatus including
the breaking open of any street or other
land for that purpose;
(c) the operational construction
(including maintenance, development
and new construction), by or on behalf
of
a
department
of
the
Central
Government.
(d) the erection of a building not
being dwelling-house, if such building, is
required for the purpose subservient to
agriculture;
(e) the excavations (including wells)
made
in
the
ordinary
course
of
agricultural operations; and
(f) the construction of unmetalled
road intended to give access to land
solely for agricultural purposes: "

9. From a plain reading of the
provisions of Section-27(2) of the Act it is
clear that order passed by Vice Chairman
of Development Authority under Section27(1) of the said Act is appealable before
the
Chairman
of
the
Development
Authority
who
is
Divisional
Commissioner i.e. Commissioner, Kanpur
Division, Kanpur. Therefore, in case the
petitioner have any grievance against
impugned order passed by Vice Chairman
under Section 27 (1) of the Act he could
prefer the appeal before the Chairman
under Section 27(2) of the Act and raise
his grievances ventilated in the writ
petition as well as in the plaint of the suit.
In case the petitioner would still remain
aggrieved by the order passed by the
Chairman, he may challenge the order
straight way before this Court but in wake
of
provisions
of
Section-27(4)
and
Section-37 of the Act,1973, which creates
a bar and attach finality upon the orders
passed under Section-15 or 27 of the
Act,1973, it was not open for the
petitioner to challenge the aforesaid
orders directly or indirectly before the
Civil court which could not entertain the
suit
against
the
aforesaid
orders.
Therefore, the Suit No.644 of 2007
(Shyam Sunder Agrawal Vs. Kanpur
2 All] Virendra Pal Singh V. State of U.P. and another
353
Development Authority) giving rise cause
of action of writ petition, in my opinion,
is not maintainable before the Civil Judge
(Senior Division), Kanpur Nagar and is
liable to be dismissed. I am of the further
view that so long as the aforesaid orders
passed
by
Vice-Chairman
of
Development Authority under Section27(1) of the Act,1973 remains intact and
is not set-aside by the competent
authority, the Civil court would not be
able to grant any permanent injunction or
temporary injunction in favour of the
petitioner in the said suit.

10. So far as, applicability of the
provisions of Section-52 of the Act, in
respect
of
the
alleged
repair
and
maintenance activities undertaken by the
petitioner is concerned, it is to be pointed
out that the order of demolition of
building of the petitioner was passed by
Vice-Chairman
of
the
Development
Authority after affording opportunity of
hearing to him. Since the impugned order
of demolition has been passed holding
that the activities undertaken by the
petitioner are in contravention of the
provisions of Act or that were without
approval
or
sanction
of
competent
authority and said order can not be called
in question before the Civil Court in view
of Section-27(4) and Section-37 of the
Act, therefore, Civil court in civil suit
cannot be held to be capable of taking
different view in the matter than that of
taken by the competent authority, as such,
in
my
considered
opinion,
despite
provisions of Section-52 of the Act, Civil
court is not competent to examine
correctness or otherwise legality of
decision
of
Vice
Chairman
of
Development
Authority
taken
under
Section 27(1) of the Act, 1973 otherwise
the object and purpose underlying the said
provisions of the Act would be defeated.
In my opinion, aforesaid provisions of the
Act embodies sound public policy to
exclude intervention of the courts in the
orders of the officers of Development
Authority under Section 15 and 27 of the
Act, 1973. In this view of the matter, I am
not inclined to examine correctness or
otherwise legality of impugned orders
passed by the courts below while refusing
to grant temporary injunction to the
petitioner
during
the
pendency
of
aforesaid civil suit.

11. Since I have held that original
suit instituted by the petitioner is not
maintainable and liable to be dismissed,
therefore, the said suit stands dismissed.
Accordingly the Registrar General of this
Court is directed to communicate this
order forthwith to the District Judge,
Kanpur Nagar who shall place the order
on the record of the suit in question and
concerned court is directed to consign the
record of the case to the office.

12.

In
view
of
aforesaid
observations and directions, the writ
petition stands dismissed on the ground of
alternative remedy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.6205 of 2008

Virendra Pal Singh

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh