Allahabad High Court
Mohd. Iliyas vs State Of U.P. Thru. Its Prin. Secy. Awas & ... on 19 July, 2019
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- MISC. SINGLE No. - 3150 of 2012 Petitioner :- Mohd. Iliyas Respondent :- State Of U.P. Thru. Its Prin. Secy. Awas & Ors. Counsel for Petitioner :- P.S. Mehra,Bhanu Pratap Counsel for Respondent :- C.S.C.,Abhishek Kr. Pandey,Amresh Bahadur Singh,Brijesh Kumar Mishra,Gaurav Mehrotra,Piyush Kumar Agarwal,Rajendra Singh Chauhan,Rajnish Kumar Singh Hon'ble Mrs. Sangeeta Chandra,J.
(Oral) (1) Heard learned counsel for the petitioner Shri P.S. Mehra, Shri Piyush Kumar Agarwal, who appears for the opposite party nos.5 & 6 and Shri Rajnish Kumar Singh, who appears for the LDA.
(2) This petition has been filed by the petitioner who is a tenant of a Shop no.2 situated on Plot No.MDL-I/2-A, Aliganj Scheme, Lucknow. The petitioner took the said Shop no.2 in Durga Shopping Centre on a monthly rent of Rs.1400/- in 1994 and has been paying the said rent regularly to the Landlady Smt. Shakuntala Devi. The shop being situated at the corner of the business complex and on the basis of Rent Agreement the petitioner is running a business under the name and style of M/s New Bishan Auto Care. It has been submitted by the learned counsel for the petitioner that the private Opposite party nos.5 & 6 are the sons of Landlady Smt. Shakuntala Devi. On 16.08.2009 both Opposite party nos.5 & 6 tried to evict the petitioner from his shop unauthorizedly. The petitioner filed a Regular Suit for permanent injunction bearing Regular Suit No.179 of 2009 in the court of learned Civil Judge (Junior Division), South, Lucknow and was granted a temporary injunction on 05.10.2009 to the effect that he shall not be evicted except in accordance with law. The Opposite party nos.5 & 6 being unable to evict the petitioner from possession of the said shop got initiated the proceedings under Section 27 (1) of the U.P. Urban Planning and Development Act, 1973, for alleged unauthorized construction of the commercial shop over the land in question. A demolition order was passed by the Prescribed Authority on 31.08.2010 on the basis of a Report dated 21.05.2010 of the Enforcement Cell of the LDA. From a perusal of the Order dated 31.08.2010 it was evident even after Show Cause Notice was issued on 31.05.2010 the owners of the plot in question i.e. Landlady Amit Kumar and Others did not appear to contest the matter.
(3) Since the order dated 31.08.2010 was operating against the interest of the petitioner he filed an Appeal before the Vice Chairman of the LDA which Appeal was allowed on the ground of violation of principles of Natural Justice on 20.10.2011. The matter was remanded to the Prescribed Authority to consider afresh after giving an opportunity of hearing to the petitioner. The petitioner was heard thereafter but the landlords refused to appear and they did not produce any documents with regard to the sanction of Map for construction of shop in question. The Prescribed Authority again passed an order under Section 27 (1) of the Act, 1973 for demolition of the shop in question on 03.02.2017 despite pendency of the Regular Suit of the petitioner which fact was mentioned in the reply submitted by the petitioner before the Prescribed Authority. The Prescribed Authority observed that the petitioner was a tenant and he could not produce any documentary evidence to show that plan for construction of shops on the plot in question was sanctioned and the demolition order issued earlier was proper.
(4) Against the order dated 03.02.2017 the petitioner filed an Appeal No.181 of 2011 which has been dismissed by the Commissioner/Chairman, LDA, Lucknow by the order dated 16.05.2012 without considering the fact that the petitioner is a victim of the design of the Landlords to evict him and collusion between the landlord and the officials of the LDA.
(5) When this writ petition was filed an interim order was granted by this Court on 30.05.2012 to the effect that till the next date of listing the operation of the order dated 03.02.2012 contained in Annexure No.10 to the writ petition shall remain stayed. Notices were issued to the private respondents by this Court.
(6) The private respondent nos.5 & 6 have filed counter affidavit wherein they have stated that the Civil Suit bearing No.179 of 2009 had only given limited relief to the tenant that he shall not be evicted except in accordance with law. The father of opposite party no.5 namely Shri Babu Lal had got the lease of the Plot No.MDL-I/2-A, Aliganj Scheme, Lucknow executed in his favour on 12.04.2019 and had constructed six shops thereon in the year 1993 when the opposite party no.5 was only 13 years old and therefore, he has no knowledge regarding whether any sanctioned of Map for construction of shops in question was approved on the application of his father to the LDA. It has been submitted that Shri Babu Lal died on 04.04.1994 leaving behind his widow Smt. Shakuntala Devi and opposite party nos.5 & 6 who are the sons and legal heirs. Smt. Shakuntala Devi had let out the Shop Nos.2 and 3 situated in building commonly known as Durga Shopping Center constructed over the lease Plot No.MDL-I/2-A, Aliganj Scheme, Lucknow to the petitioner in 1994. Similarly, remaining shops were also let out to other persons. As per the Tenancy Agreement signed between the petitioner and the landlords on 01.09.2006, the said tenancy was only for fixed period of 24 months on a fixed rent. The petitioner vacated the Shop No.3 in the month of July, 2009 as per the terms of the Agreement.
(7) The petitioner filed a Regular Suit No.179 of 2009 (Mohd. Illiyas Vs. Amit Kumar and Another) in the court of Civil Judge (Junior Division), Lucknow for permanent injunction for Shop No.2. An interim injunction was granted on 05.10.2009. In the meanwhile, notice was issued to the landlords for demolition of Commercial Construction raised over least hold Plot No.MDL-I/2-A, Aliganj Scheme, Lucknow and a case under Section 27 (i) was instituted being Case No.258 of 2012 on the report of the Enforcement Cell of the LDA. A notice was served upon the opposite party no.5 but he had no evidence to substantiate that the construction raised over the Lease hold plot had been on the basis of sanctioned plan. The opposite party no.5 also consulted an Advocate and was advised not to pursue the matter further and he did not challenge the order dated 31.08.2010 as he had no documentary evidence to prove that the construction raised was not in contravention of the Zonal plan and the Lease conditions by the LDA in 1989.
(8) The landlords have also instituted Small Causes Court Suit No.27 of 2014 (Amit Kumar and Another Vs. Mohd. Illiyas) which is pending, for eviction of the tenant. It has been submitted during the course of arguments by Mr. Piyush Kumar Agarwal who appears for the opposite party nos.5 & 6 that the said suit has been decreed in 2018 and the petitioner had filed a SCC Revision against the same which Revision is pending but no interim order has been passed therein staying the eviction of the tenant. In pursuance of the Decree of the learned Small Causes Court the landlords have also filed an Execution Case where warrant of possession has been issued and when the Amin went to the premises in question the petitioner refused to vacate the same and the Amin reported to the Executing Court that the police help would be needed to carry out the eviction. It has been submitted by the learned counsel for the opposite party nos.5 & 6 that there is no collusion with the LDA and the landlords have filed a Regular Suit for eviction wherein the orders have been passed in their favour against the tenant and they have proceeded only in accordance with law. It has been submitted that since the petitioner is flouting the decree of the SCC Court for eviction without there being any interim order giving him protection in the SCC Revisions pending, this Court should not permit the petitioner to continue with his unlawful possession.
(9) The counsel for the LDA, Shri Rajnish Kumar Singh, has pointed out from the short counter affidavit filed by the LDA that the LDA was not made a party to any of the proceedings before Civil Court either by the landlords or by the tenant. The LDA is only concerned with unauthorized construction over the plot in question in contravention of the Lease deed. The record shows that the Lease deed was executed between the LDA and the father of the opposite party nos.5 & 6, Shri Babu Lal, for construction of one Kirana shop only on the plot in question because it was the corner plot. There was no permission by the LDA for construction of Durga Shopping Center on the plot in question where six shops have been admittedly constructed without there being any sanction of Map for such construction. The order passed by the LDA for demolition of the unauthorized construction is in accordance with the observations made by this Court in several judgments rendered from time to time to the effect that the commercial activities cannot be carried out in residential areas against the Lay out plan.
(10) Shri Rajnish Kumar Singh, has stated that in pursuance of the order passed by this Court on 10.02.2014 an affidavit has again been filed on behalf of the LDA wherein it has been specifically stated that there is no sanction to any building plan for the unauthorized construction raised on Plot No.MDL-I/2-A, Aliganj Scheme, Lucknow. It has been submitted that only the Zonal Lay Out Plan was sanctioned for the area in question in Sector-L can be found in the records of the LDA and the copy of the said Map of Sector-L Aliganj Yojana has been filed in compliance of the Court's Order.
(11) The original sanctioned lay out plan and the revised sanctioned plan for HIG, LIG, EWS Housing sides and Services in Sector-L, Aliganj, Lucknow, have been perused by this Court. The sanctioned lay out plan refers to the whole row of houses/plots adjacent to Plot No.MDL-I/2-A, Aliganj Scheme, Lucknow as MIG Plots ad-measuing 32 feet 3 inches into 61 feet 9 inches and the row starting with the corner plot i.e. the Plot in question and on the back of MIG Plots has been shown as LIG plots admeasuring 20 feet X 48 feet. It is apparent from a perusal of the lay out plan that no commercial complex had either been planned or sanctioned either on the road on which the plot in question is situated or even nearby the said road, on adjacent roads. There is an admission on the part of the landlords in their counter affidavit that there is no building plan sanctioned for the commercial construction raised on the plot in question. The Prescribed Authority and the Appellate Authority of the LDA have stated clearly in their orders that the LDA is concerned only with unauthorized construction and has instituted the proceedings under Section 27 (1) of the Act, 1973 for demolition of such illegal construction.
(12) This Court having considered the rival submissions does not find any merits in this writ petition. The demolition of all Commercial construction i.e. all six shops on the plot in question shall be carried out in pursuance of the orders passed by the Appellate Authority and the Prescribed Authority within a period of three months from today.
(13) Since this Court has affirmed the order impugned and there was an interim order passed by this Court staying the demolition for the past seven years. Prescribed Authority shall give opportunity to the opposite party nos.5 & 6 to themselves remove all unauthorized construction i.e. all the Commercial construction on the plot in question, commonly known as Durga Shopping Center within a period of one month from today.
(14) Learned counsel for the opposite party nos.5 & 6 has tried to argue that the LDA in its order impugned has found only construction of six shops as unauthorized and illegal. This Court should, therefore, not direct the demolition of whole Commercial Complex.
(15) The order of the LDA on the proceedings initiated in May, 2010 is more than 9 years old and other illegal construction may have been raised for conducting commercial activities on the residential plot.
(16) The LDA shall ensure that no Commercial activity is carried out on the plot in question except for one Kirana shop which was mentioned in the Leasehold deed that was signed between the erstwhile Lessee and the LDA.
(17) Writ petition stands disposed of.
Order Date :- 19.7.2019 PAL