# Smt. Kanak Garg v. U.P. Avas Evam Vikas Parishad

- **Citation:** (2013) 1 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-21
- **Case number:** Misc. Bench No. 2971 of 2001
- **Bench:** Rajiv Sharma, Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kanak-garg-v-u-p-avas-evam-vikas-parishad-42529
- **Pages:** 4

## Headnote

Sri Mahesh Chandra
Sri Mahesh Chandra
Sri Nakul Dubey
Sri R.K. Mehrotra

U.P. Awas Evam Vikas Adhiniyam 1965,
Section 12, Section 18-demolition of
unauthoizd
construction-construction
made after sanction of lay out plan-non
application and callous attitude of the
1 All] Smt. Kanak Garg V. U.P. Avas Evam Vikas Parishad
51
authorities by not indicating the error in
noticed
property
subjected
to
unauthorized
construction-helddemolition
order
can
not
sustainquashed.

Held: Para-10

In the instant case, since the description
of unauthorized construction has not
been indicated in the impugned order of
demolition, it cannot be sustained. It
appears that authorities were swayed
with the fact that constructions were
raised without getting the lay out plan
sanctioned but later on, in the counter
affidavit,
they
admitted
that
the
petitioner did get the lay out plan
approved
but
raised
unauthorized
constructions.
Case Law discussed:
2008 (13) SCC 506

## Text

50 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Principal Civil Court of original jurisdiction
in a district and may include a High Court
in exercise of its ordinary civil jurisdiction
having jurisdiction to decide the questions
forming the subject matter of the arbitration,
if it had been the subject matter of the suit
and would not include any civil court of a
grade inferior to such principal Civil Court.

13. It has been settled by various
authorities that the court of District Judge in
district would be a Principal Civil Court of
original jurisdiction for the purposes of
court under the Act.

14. It is well acknowledged that the
High Court of Judicature at Allahabad is not
a court exercising ordinary civil jurisdiction
and therefore, is outside the ambit of the
word 'Court' used in the Act.

15. The Apex Court in M/s Pandey
and Co. Builders Pvt. Ltd. Vs. State of
Bihar AIR 2007 SC 465 with reference to
the definition in Section 2(e) of the Act laid
down that High Court not exercising
original civil jurisdiction is not a court.

16. The Chief Justice as referred in
Section 11 of the Act in making a reference
to an arbitral tribunal has not been referred
to and included within the ambit of a 'court'
as defined under Section 2(e) of the Act.
The power which has been vested in the
Chief Justice by virtue of Section 11 of the
Act is different and not that which has been
conferred upon any court as contemplated
by the Act. Therefore, for the purposes of
making an application under Section 11 of
the Act, the authority of the Chief Justice
cannot be equated to that of a court so as to
permit filing of subsequent applications in
respect of the matters relating to the said
arbitration before the Chief Justice or to the
High Court concerned.

17. In view of the aforesaid facts and
circumstances, I am of the view that this
petition whether under Article 226/227 of
the Constitution of India or under Section
34 read with Section 42 of the Act is not
maintainable before this court and the
proper remedy available to the petitioner, if
any, is to make proper application under
Section 34 of the Act to the Court i.e. the
Principal Court of original jurisdiction of
the concern district.

18. The petition lacks merit and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Misc. Bench No. 2971 of 2001

Smt. Kanak Garg

 ...Petitioner
Versus
U.P. Avas Evam Vikas Parishad, Through
Its Chairman

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava
Srib Hans Raj Yadav
Sri Rajesh Kumar Tripathi
Sri Santosh Kumar

Counsel for the Respondents:
Sri Mahesh Chandra
Sri Mahesh Chandra
Sri Nakul Dubey
Sri R.K. Mehrotra

U.P. Awas Evam Vikas Adhiniyam 1965,
Section 12, Section 18-demolition of
unauthoizd
construction-construction
made after sanction of lay out plan-non
application and callous attitude of the
1 All] Smt. Kanak Garg V. U.P. Avas Evam Vikas Parishad
51
authorities by not indicating the error in
noticed
property
subjected
to
unauthorized
construction-helddemolition
order
can
not
sustainquashed.

Held: Para-10

In the instant case, since the description
of unauthorized construction has not
been indicated in the impugned order of
demolition, it cannot be sustained. It
appears that authorities were swayed
with the fact that constructions were
raised without getting the lay out plan
sanctioned but later on, in the counter
affidavit,
they
admitted
that
the
petitioner did get the lay out plan
approved
but
raised
unauthorized
constructions.
Case Law discussed:
2008 (13) SCC 506

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned Counsel for the
petitioner and Sri Mahesh Chandra,
learned Counsel for the respondents.

2. Through the instant writ petition
under Article 226 of the Constitution of
India, the petitioner challenges the order
dated 7.6.2001 contained in Annexure
No. 11 to the writ petition, whereby
unauthorized constructions made upon
Plot Nos. 64/17, 65/17, 78/17, 79/17 was
directed to be demolished inter alia on
the
grounds
that
the
petitioner
constructed
structures
unauthorizedly
over the plots in question without getting
the map sanctioned.

3. Counsel for the petitioner
submits that the petitioner was allotted
commercial plot Nos. S-64/17, S-65/17,
S-78/17, S-79/17 situated at Rajaji
Puram Colony, Lucknow by the Uttar
Pradesh Avas Evam Vikas Parishad,
Lucknow vide letter dated 6.2.1990 and
the physical possession of the plots in
question was handed over to the
petitioner on 7.5.1991. On 16.10.2000,
registered sale deed was executed in
favour of the petitioner. According to
the petitioner, after taking possession of
the plots in question, the petitioner
applied for sanctioning the map, which
was
approved
vide
letter
dated
25.10.1991 for plot No. S-64/17; vide
letter dated 28.11.1991 for plot Nos. S65/17 and S-79/17; and vide letter dated
26.10.1991
for
plot
No.
S-78/17.
Thereafter,
the
petitioner
raised
construction
in
accordance
with
sanctioned map.

4. According to the petitioner,
though the construction existing on the
plots in question is identical to the
construction made on other commercial
plots situated in the same vicinity, the
Executive Engineer/Prescribed Authority
issued notice to the petitioner on
11.1.2001,
stating
therein
that
constructions made on the plots in
question was raised unauthorizedly. In
response to the said notice dated
11.1.2001, the petitioner submitted his
reply on 16.1.2001. Being not satisfied
with the reply of the petitioner, another
notice dated 21.3.2001 was issued to the
petitioner, stating therein that maps of
the petitioner were not approved by the
Parishad. Subsequently, vide impugned
notice dated 7.6.2001, it has been
informed to the petitioner that as the
maps
for
construction
were
not
sanctioned,
as
such,
unauthorized
construction is to be demolished. Feeling
aggrieved, the instant writ petition has
been preferred by the petitioner.
52 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

5. Learned Counsel for the
petitioner submits that Appendix-I of
U.P. Housing and Development Board
Regulations, 1982 framed in exercise of
the powers under Clause (n) of Section
95 (1) read with Section 15 (1) (h) of
U.P.
Avas
Evam
Vikash
Parishad
Adhiniyam,
1965,
empowered
for
charging
compounding
fee
for
unauthorized construction under Section
81 of the Act. He submits that if
construction has been made according to
bye-laws and regulation but if the
applicant
has
not
obtained
prior
permission for the construction, then,
Rs.1000/- or Rs.500/- is provided in Item
No.7 but in the instant case, the
petitioner has raised the structures upon
the plot in question after approval of the
map by the Parishad. Therefore, it was
incumbent upon the authorities to see
that the constructions, which were raised
by
the
petitioner,
falls
under
compounding or not and only thereafter,
they should have proceeded further but
not doing so, is in contravention of the
statutory provisions of Section 82 and 83
of the 1965 Adhiniyam. Thus, the
impugned notice dated 7.6.2001 is not
tenable in the eyes of law.

6. Per contra, Sri Mahesh Chandra,
learned counsel for the respondent
submitted that the order of demolition
was passed by the Executive Engineer in
the capacity of the competent authority
duly
authorized
by
the
Housing
Commissioner in exercise of the powers
conferred under Section 12 (2) of the
U.P.
Awas
Evam
Vikas
Parishad
Adhiniyam, 1965 by notification dated
2.5.2001. The said order of demolition
was issued as the constructions were not
raised in accordance with sanctioned
plan. While admitting that the maps were
approved, it was stated on behalf of the
respondents that constructions were not
raised in accordance with sanctioned
building plan and as such, action as
prescribed under law was taken. Further,
it is not the right of the petitioner to get
unauthorized and illegal constructions
compounded
inasmuch
as
illegal
constructions without sanctioned plan
cannot necessarily be compounded.

7. Before dealing with the merits
and demerits of the case, we would like
to mention that this writ petition was
filed in the year 2001 and a co-ordinate
bench of this Court, while entertaining
the writ petition being satisfied with the
assertions of the petitioner, passed an ad
interim order directing for maintaining
status quo over the property in question.

8. It is an admitted fact that the lay
out plan for constructing the structures
over
the
plots
in
question
were
sanctioned by the competent authority. In
the order dated 7.6.2001, it has been
indicated that the petitioner has informed
that maps were approved but Architect
and Planning Unit-V has informed vide
letter dated 18.5.2001 that no maps have
been sanctioned. This allegation of the
respondents is falsified by the statement
made in paragraph 5 and 16 of the
counter affidavit. Thus, it is imminently
clear that the impugned order of
demolition is based on incorrect facts
and reflects non-application and callous
attitude of the respondents. However,
during the course of arguments, learned
counsel for the petitioner admitted that
the authorities have ample power under
the Adhiniyam to order for demolition of
unauthorized construction subject to
following the due procedure as envisaged
under
the
Act
and
Regulation.
1 All] Rajesh Kumar Misra V. State of U.P. and others
53

9. In our considered view, while
issuing notice/order for demolition, it is
imperative
upon
the
authorities
concerned to indicate in the notice as to
how much area of the property was the
subject
matter
of
unauthorized
constructions. Had a proper show cause
notice been served upon the petitioner,
he could have shown that the alleged
violation of the provisions of the Act is
of negligible character, which did not
warrant order of demolition. Aforesaid
view of ours, is fortified by the decision
rendered
by
the
Apex
Court
in
Municipal
Corporation,
Ludhiana
Versus Inderjit Singh and another
reported in 2008 (13) SCC 506.

10. In the instant case, since the
description of unauthorized construction
has not been indicated in the impugned
order of demolition, it cannot be
sustained. It appears that authorities were
swayed with the fact that constructions
were raised without getting the lay out
plan sanctioned but later on, in the
counter affidavit, they admitted that the
petitioner did get the lay out plan
approved
but
raised
unauthorized
constructions.

11. In view of the above, the
impugned order of demolition dated
7.6.2001 being defective in nature, is
hereby quashed.

12. The writ petition stands allowed
in above terms.
----------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2012

BEFORE
THE HON'BLE VISNHU CHANDRA GUPTA, J.

W.P.No. 3158 (S/S) of 2011

Rajesh Kumar Misra, aged about 35
years, S/O Sri Dwarka Prasad Misra,R/O
C-335, Avas Vikas Colony, Mira Bhawan,
Pratapgarh,

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

Counsel for the Petitioner:
Sri L.P.Misra, Senior Advocate , Advocate

Counsel for the Respondents:
Standing Counsel

Intermediate
Education
Act
1921,
Chapter 3 (Regulation 101 to 104) as
amended 1992-the appointment on the
post of Class IV employee in aided
intermediate
institution-vacancy
caused due to retirement of permanent
incumbent on the same day another
vacancy of Class III employee occurred
due to death in Harness-claim for
compassionate
appointment
already
processed-accepted
by
D.I.O.S.-the
Principal
without
taking
prior
permission/information
made
direct
appointment and send the papers for
approval-refusal
by
D.I.O.S.-heldproper-according
to
mandatory
provisions of regulations 101 to 107without
waiting
the compassionate
appointment-finally authority can not
proceed to make direct recruitmentCourt
declined
to
interfere-as
compassionate
appointment
has
already been made-another existing
vacancy of Class IV post can be madesubject to fulfillment of mandatory
requirements of regulation.