HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No.27
Writ Petition No. 5528(M/B)/ of 2008
Sahara India Commercial Corporation Ltd vs. Nagar Nigam, Lucknow and others.
Hon'ble Devi Prasad Singh, J
Hon'ble Bala Krishna Narayana, J
Supplementary affidavit filed by the petitioner's counsel and short counter affidavit of Shri Ram Bahadur, Vice Chairman, Lucknow Development Authority are taken on record.
1.We have heard Shri Raghvendra Singh, Shri Virendra Bhatia, learned Senior Counsel, assisted by Shri Ashok Pandey, Shri Gaurav Bhatia appearing on behalf of the petitioner and Shri Jyotindra Mishra, learned Advocate General, appearing for the State of U.P., Shri S.S. Chauhan, learned counsel for Lucknow Nagar Nigam and Shri P.N. Gupta, learned counsel for Lucknow Devevelopment Authority.
2.After hearing learned counsel for the parties as well as keeping in view the statement made by Shri Ram Bahadur, Vice Chairman, Lucknow Development Authority, we feel that it is a fit case for admission. Accordingly, we admit the writ petition and grant six weeks' time to the respondents to file parawise reply to the writ petition and three weeks then for the rejoinder affidavit. List thereafter.
3.From the submissions made by the parties' counsel, the facts borne out are that the petitioner is a Public Limited Company to whom three leasee/licence were granted by the Lucknow Nagar Nigam as well as the Lucknow Development Authority. The first licence deed is dated 22.10.1994 for 130 acres of land granted by the Nagar Nigam for the development of the land for commercial and residential purpose. The second licence is dated 23.6.1995 for 40 acres of land for developing the land as green belt. In addition to it, a lease deed dated 28.2.1995 was also executed by which 100 acres of land was to be given to the petitioner on lease for developing it as green belt. However, it appears that the respondents have tried to interfere with the petitioner's peaceful possession in question from time to time. In consequence thereof, the petitioner has filed a regular suit No.308 of 1997 in which the competent Court has granted injunction on 1.9.1997 (Annexure- 7). Another regular suit No.312 of 1997 was filed, in which too, the injunction was granted on 15.91997(Annexure-8). The third suit was filed and registered as Regular Suit No.120 of 1998 in which also an injunction was granted on 4.5.1998(Annexure No.9). Thereafter, the petitioner has filed another regular suit No.279 of 1997, in which temporary injunction was granted by the trial Court on 19.12.1998(Annexure-10).
4.It has not been disputed by the respondents' counsel that the injunction granted by the courts below are still continuing and have got force of law.
5.A perusal of the injunction granted by the trial Court from time to time indicates that the petitioner has approached the trial Court to ventilate his grievance relating to unauthorised interference with the petitioner's possession of land as well as the move of the respondents to demolish the structure. It further reveals that the respondents have tried to cancel the lease/licence. The trial Court has restrained the opposite parties from interfering in the peaceful possession of the petitioner of the land in question and also commanded that they shall not demolish the same.
6.Yesterday, i.e. On June 18, 2008, the learned counsel for the petitioner had contacted the Registry of this Bench who in tern contacted a member of this Bench who is working as Senior Vacation Judge at about 9.00p.m. and a request was made that this Bench may be constituted during night to restrain the opposite parties from demolishing the land in question as various machines have been collected there. The Registry was directed to list the present case as first case today in the fresh cause list.
7.The case was taken up in the morning. A proceeding has already been recorded to the effect that Shri D.K. Upadhyaya, learned Chief Standing Counsel has declined to accept notice on behalf of the Lucknow Development Authority. However, Shri P.N. Gupta, learned Counsel was deputed to argue the case by the Lucknow Development Authority. The Vice Chairman, L.D.A. was summoned for 12.00 O' Clock to appear before this Court.
8.During the course of hearing at 12.00 O'clock, on the request made by the learned Advocate General as well as Shri P.N. Gupta, learned counsel appearing on behalf of the Lucknow Development Authority as also Shri S.S. Chauhan, learned Counsel for Lucknow Nagar Nigam, the case was adjourned for 2.00 p.m. today.
9.From the statement made by the Vice Chairman, L.D.A., it appears that certain land in Gomti Nagar which according to him falls within the master plan 2021 and marked as road, was encroached by the petitioner. It has been admitted by the Vice Chairman that the master plan was notified in March, 2005. It is further admitted that no written order was passed communicating the petitioner for their move to demolish the land in question. The other admission on behalf of the Vice Chairman is that the demolition was started at 10.30 p.m. wee hours of night of 18.6.2008. However, it was submitted by the Vice Chairman that the land in question is not covered by the injunction granted by the Trial Court.
10.Rebutting the submission made by the Vice Chairman, L.D.A. The petitioner's counsel submitted that not only the boundary wall of Sahara City was demolished but apart from it, a part of hospital, meant for 50 patients, an auditorium, Club, cinema hall and watch tower was also demolished. It has not been disputed by the Vice Chairman, L.D.A. that the above acts were not done by the authorities.
11.It has also been submitted by the petitioner's counsel that on June 13, 2008, the petitioner submitted a representation (Annexure-11) to the Lucknow Development Authority informing them that an injunction has been granted by the trial Court, hence they cannot be compelled to demolish the boundary wall. However, learned counsel for the L.D.A., had relied upon a proceeding dated 13.6.2008 (Annexure SC-A to the short counter affidavit) to assert that the petitioner consented for demolition. But the document does not contain the signature of the petitioner's representative hence, prima facie, does not inspire confidence.
12.However, in response to the arguments advanced by the petitioner's counsel, learned Advocate General and Mr. P.N. Gupta submitted that the petitioner himself has initiated to demolish the structure in the night of June 17, 2008 with the assistance of the officers of the Lucknow Development Authority. The demolition was continued till morning of 18th. It has been further submitted that since the whole structure was not removed by the petitioner, they were demolished in the night between 18/19th June, 2008 by the Lucknow Development Authority. Consequently, the petitioner has approached this Court by filing the present writ petition under Art. 226 of the Constitution of India.
13.The power of demolition of unauthorised structure vests in the developmental authorities in pursuance to the provisions contained in Section 26-A and 27 of the U.P. Urban Planning and Development Act, 1973 (in short, Act). Section 26-A of the Act provides that in case any encroachment or obstruction on a public land in a development area is done, which is not a private property, then the authority concerned may serve a show cause notice requiring such person to submit reply as to why he shall not be required to remove such encroachment or obstruction within fifteen days.
14.Section 27 provides that a building may be demolished in case it has been constructed in contravention of the master plan or zonal development plan or without the permission and contrary to Section 14. Authority concerned may make an order directing such person to remove the structure by demolishing, felling and alike means. Thus, Section 27 provides that an opportunity to the person concerned shall be given to remove the structure by serving a notice within fifteen days. Needless to say, that the order for demolition of unauthorise building is appellate before the Chairman.
15.Learned counsel for the respondents has relied upon Section 26-C of the Act which provides that the development authority may demolish, remove any wall, fence, booth, building etc. constructed/installed in contravention of the Act over any street, open channel, drain, well or tank etc. Thus, Section 26-C shows that it relates to only public road, drainage, well, tank etc.
16.It is settled proposition of law that while interpreting the provisions contained in the Act or statute, no word may be added in case thee is no ambiguity. The language of Section 26-C prima facie does not show that the developmental authority has got power to demolish the building or any structure which has not been constructed over a road. Accordingly, prima facie, it appears that Section 26-C is not attracted in the case in hand. In the present case, constructions were done before Master Plan 2021, and is subject matter of pending suit.
17.One of the arguments advanced by the respondents' counsel is that the road was already existing over the place in question and the petitioner itself has demolished the structure. The other argument is that the land in question does not fall within the ambit of lease or licence granted to the petitioner company.
18.The above argument of the respondents' counsel prima facie does not inspire confidence for the simple reason that the photographs filed with the supplementary affidavit and other material on record make it amply clear that the constructions were demolished by the officers of the Lucknow Development Authority by using heavy machines during wee hours of the night. For the sake of argument, there may be a case for demolition of the boundary wall but that also cannot be done during wee hours of night. Moreover, the demolition of hospital, auditorium, health club, cinema hall requires compliance of Section 26-A and Section 27 of the Act. It is settled provision of law that in case the authorities want to do certain things, then that should be done in the manner provided by law or statute and not otherwise.
19.The averment of the respondents' counsel that there was road also does not seem to be correct. The master plan was notified in March, 2005. The suit was filed long back and the trial Court has granted injunction from time to time. Once the injunction was operating and there was no dispute regarding title of the land in question, the respondents were not justified in their move to remove/demolish the structure in question. Further, even if they were to demolish or remove the structure, they were bound to serve a prior notice in writing and afford opportunity to the petitioner for putting up his cause. However, in the present case, no such notice or opportunity appears to have been given to the petitioner. It is settled law that the right accrued to the citizens cannot be violated and the principle of natural justice must be followed.
20.Hon'ble the Supreme Court long back in the case reported in AIR 1970 SC 150 A.K.Kraipak and others Vs. Union of India and others, followed by AIR 1978 SC 597: Maneka Gandhi Vs. U.O.I. and thereafter, AIR 1991 SC 101, Delhi Transport Corporation Vs. DTC Mazdoor Congress, ruled that principles of natural justice is a part and partial of the Article 14 of the Constitution of India and the citizens cannot be deprived of their rights in violation of principles of natural justice. More so, as discussed hereinabove, the mandate of the Act requires service of notice and due compliance of principles of natural justice.
21.There is blatant abuse of powers by the officers of the Lucknow Development Authority, Lucknow.
22.After hearing the learned counsel for the parties, we feel that the questions involved in this petition are of public importance hence we frame following questions for adjudication:
1. Whether the Development Authority have got right to demolish a building, hospital, auditorium, living house or alike structures without serving a show cause notice and seeking reply from the person concerned and whether the authorities have got right to proceed in contravention of provisions contained in U.P. Urban Planning and Development Act, 1973 and other laws time being in force?
2. Admittedly, the demolition was initiated by the Lucknow Development Authorities Lucknow at 10:30 p.m. in the night, then whether the Government, Development Authorities or its local bodies have got right to demolish the building, hospital, auditorium, living house or alike structures belonging to private person or corporate body or the Government during wee hours in the night?
3. Whether without passing and serving a written order showing the intent to demolish a building or structure, or eviction State or Development Authorities or local bodies have got right to demolish or evict a person by an oral order or instructions?
4. Whether in case the State authorities violate the statutory provisions and constitutional mandate, they can be prosecuted on criminal and civil side and exemplary damage be awarded against them and it may be treated as misfeasance in public office? In case yes, then under what circumstances?
23.Hon'ble the Supreme Court in the case of AIR 1967 SC 1, Naresh Sridhar MirajkarVs. State of Maharashtra and another, while affirming observations made by Bentham reported in 1911 All ER:30, has observed as under:
"In the darkness of secrecy sinister interest and evil in every shape have full swing."
24.There is a legal maxim , "Dies Dominious Non Est Jurisdicus" meaning thereby, Sunday is not a day for judicial or legal proceedings.
25.At least in the night, no action and steps should be taken which may cause undue hardship to public and peoples may be deprived of their essential commodities like building or any structure or house or land etc.
26.In England, under Section 6 of the Sunday Observance Act, 1677, it was provided that no work should be done on Sunday. In our country also, it is settled law that right to quality of life and dignity of life is fundamental right guaranteed under Article 21 of the Constitution of India.
27.Learned counsel for the petitioners have rightly relied upon Section 62 CPC which provides that property cannot be attached or seized after sunset and before sunrise. No person executing any decree under the Code direct or authorize seizure of movable property or may enter any dwelling-house after sunset and before sunrise.
28.Needless to say that the hospital which was demolished, was having patients and it is not expected in a civilised society to demolish a building or structure during wee hours of night.
29.The power of judicial review is the fundamental right guaranteed under the Constitution of India as settled by Hon'ble the Supreme Court in the case reported in (2007) 2 SCC 1: I. R. Coelho Vs. State of T.N., Meaning thereby the State Government cannot proceed in the manner which may restrain the citizens to approach the Court for judicial review of its order.
30.Every act of demolition of any building or structure whether belonging to State Government, private person, private body or corporation during the night particularly after sunset and before sunrise, amounts to barbaric act and it is not expected in a civilised society which is governed by the Rules of law.
31.Hon'ble Supreme Court in the case reported in AIR 1975 SUPREMECOURT 2260: Smt. Indira Nehru Gandhi Vs. Raj Narain, has defined the Rule of law as under:
"205. Rule of Law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such such decision is the antithesis of a decision taken in accordance with the rule of law."
32.Needless to say that material in evidence on record does not seem to make out a case that the respondents have adhered to Rule of Law which is the basic tenor of our Constitution.
33.Accordingly, as an interim measure, we restore the possession of the premises in question belonging to the petitioners and the opposite parties are directed to pass appropriate orders within 24 hours restoring the possession to the petitioner over the premises in question. It shall be open to the petitioner to make necessary construction to safeguard its property. However, steps taken by the petitioner shall be subject to final outcome of the regular suits pending in the courts below. The trial court is directed to club all the suits and proceed with the same expeditiously giving preference over and above other suits.
34.While dealing with a similar case relating to Dr. Bhim Rao Ambedkar Sports Complex, a Division Bench of this Court of which one of us (Hon'ble Devi Prasad Singh, J) was a member [W.P. No.4491 (M/B) of 2007: Om Prakash Yadav & others Vs. State of U.P. & others], has passed an interim order restraining the respondents to demolish the standing erection/structures during night. However, the writ petition was later on dismissed as withdrawn in view of the application moved by few of the petitioners. Thus, it appears that in absence of any specific rules or regulations and without following the provisions of Section 62 of the C.P.C., the authorities are in a very whimsical manner demolishing the structure. In this way, the action of the opposite parties compel us to pass the following order ad interim mandamus in public interest to stop such reoccurrence in the State of U.P.
1.Keeping in view the practice in western countries and the discussions, made hereinabove, it shall be appropriate that the State of U.P. as well as the Union of India should legislate appropriate law so that no demolition of building, infrastructure may be done or a person may be evicted after sunset or before sunrise or before or after working hours and on holidays in any manner whatsoever as it is against the fundamental rights of the citizens to enjoy the quality and dignity of life protected by the Constitution and expected in a civilized society.
2.We direct that the State Government henceforth, not initiate to demolish any building or structure whether it belongs to public body, corporation or State or any person whosoever he may be or evict a person without passing and serving a written order in advance. At any cost, such a demolition or eviction shall not be initiated before 9.00a.m. in the morning and after 5.00 in the evening. Passing of such order is necessary so that in case the power exercised by the authorities is in violation of any law or statute or is arbitrary, the aggrieved party may approach the competent Court for judicial review of such action.
3.We further direct that no further demolition may be done in the state of U.P. - whether the property belongs to a private person or a corporate body without serving a notice in writing to the aggrieved party.
4.Our order shall continue till final adjudication of the present writ petition or legislation whichever is earlier.
35.Keeping in view the directions, given hereinabove, the Chief Secretary, Government of U.P. Is directed to issue a circular/order within 24 hours and file a compliance report by tomorrow.
36.The petitioner is permitted to implead the Secretary, Union of India, Ministry of Urban Development as one of the respondents. A copy of the present order may be sent to the Secretary, Law Union of India as well as the Chief Secretary of the State of U.P. To do needful in the matter for the appropriate legislation to check the reoccurrence of such incident.
37.List this petition after exchange of affidavits. However, the writ petition shall be taken up tomorrow, for the purpose of compliance report relating to issuance of circular/order by the Chief Secretary and Lucknow Development Authority.
19.6.2008
5528(M/B)/08
Let a certified copy of this order be issued to the learned counsel for the parties as per rules today.
