Allahabad High Court
Smt. Suman vs State Of U.P. And 4 Others on 3 March, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - C No. - 28334 of 2022 Petitioner :- Smt. Suman Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ashok Kumar Pandey Counsel for Respondent :- C.S.C.,Pradeep Kumar Tripathi,Ravi Prakash Pandey Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Manjive Shukla,J.
Heard learned counsel for the petitioner and Sri Pradeep Kumar Tripathi, learned Advocate appearing for the respondent- Ghaziabad Development Authority.
By means of the present petition, the petitioner herein seeks to challenge the order dated 01.09.2022 passed by the Vice Chairman, Ghaziabad Development Authority, Ghaziabad which has been passed pursuant to a direction issued by this Court in the judgement and order dated 10.11.2021 passed in Writ Petition No.24881 of 2021. We may note that the said writ petition was withdrawn by the petitioner herein with the liberty to approach the respondent No. 3 namely the Vice Chairman, Ghaziabad Development Authority, Ghaziabad. The order impugned records that the first floor of the house-in-question is in occupation of respondent No.6 and 7 herein, who are residing therein along with their family. The order impugned further records that a title dispute is going on between the parties namely respondent Nos.6 and 7 and the petitioner herein.
It seems that a proceeding for demolition of the first floor of the house-in-question had been initiated under Section 27 of the UP Urban Planning and Development Act, 1973 (in short, 'the Act, 1973') and an order dated 06.10.2018 had been passed by the competent authority, i.e. Ghaziabad Development Authority and the notice dated 18.12.2018 had been issued to the petitioner herein under Section 27 of the Act, 1973. After passing of the said demolition order, the petitioner herein approached this Court in Writ-C No.29444 of 2019 with the prayer to issue direction to the component authority to carry out the demolition order dated 06.10.2018 and demolish the unauthorised construction. The impugned order further records that Writ-C No.28306 of 2019 was filed by the respondent No.6 (Vikram Singh & anr vs. State of UP & ors) seeking to challenge the demolition order and the notice dated 18.12.2018, which had been disposed of vide order dated 07.11.2019, wherein opportunity had been granted to the respondent No.6 to file his objection to the notice dated 18.12.2018 and the authorities were directed to decide the matter. It was directed that no further action pursuant to the notice dated 18.12.2018 shall be taken. Writ-C No.29444 of 2019 filed by the petitioner had also been disposed of vide order dated 07.11.2019 in view of the aforesaid order passed in the writ petition filed by respondent No.6. It is recorded in the judgment and order dated 07.11.2019 passed in Writ-C No.28306 of 2019 filed by the respondent Nos.6 & 7 herein that the petitioner therein were ready to move application for compounding and for sanction of map. The said petition was contested by the petitioner herein who was impleaded as respondent No.8 therein. The petitioner herein had again filed a Writ-C No.24881 of 2021 which had been withdrawn seeking liberty to represent before the competent authority.
The contention of the learned counsel for the petitioner is that the dispute relating to title over the property-in-question raised by respondent Nos. 6 and 7 has been brought to its logical end, inasmuch as, Civil Appeal No.96 of 2018 has been dismissed on 17.02.2023. The copy of the memo of appeal filed by respondent Nos.6 and 7 is appended at page No.'60' of the paper book. A perusal thereof indicates that the said appeal had been filed against the original owners of the property-in-question. The order of dismissal of the said appeal is not placed before us.
Be that as it may, a perusal of the memo of appeal and the decree of the Civil Court dated 31.08.2017 passed in Original Suit No.1269 of 2011 indicates that there was a dispute with regard to the property-in-question title to which was claimed by the respondent Nos.6 and 7 on the basis of a registered sale deed executed in their favour. The petitioner herein has acquired right in the property-in-question on the basis of the sale-deed dated 09.05.2018. It is an admitted fact of the matter that on the date of execution of the sale deed in favour of the petitioner herein, the respondent Nos.6 and 7 were in occupation of the property-in-question. It is also an admitted fact that respondent Nos.6 and 7 are still in occupation of the first floor of the house-in-question.
In the said scenario, the observations in the order impugned that in view of the title dispute between the respondent Nos.6 and 7 and the original owner of the property-in-question, the demolition order for demolition of the first floor of the house-in-question cannot be executed, is found justified.
We may further record that pursuant to the order passed by this Court in Writ-C No.28306 of 2019 dated 07.11.2019, the Vice Chairman, Ghaziabad Development Authority had passed the order dated 06.05.2020 wherein it is recorded that the first floor of the house-in-question had been constructed without any sanction of map and the same has to be demolished by the persons who raised the constructions. There is nothing on record to indicate as to who had raised the construction of the first floor of the house-in-question.
Be that as it may, having noted the above facts, we find that there is a dispute between respondent Nos. 6 and 7, the petitioner and the original owners of the house-in-question. By seeking execution of the demolition order dated 06.10.2018, the petitioner, who is a subsequent purchaser of the house-in-question, is trying to evict respondent Nos.6 and 7, who are claiming right over the property-in-question on the basis of the registered sale deed executed in their favour. We may further record that we are not concerned with any decision in the matter between the respondent Nos.6 and 7 and the original owners. In any case, in the garb of execution of the demolition order, there cannot be eviction of respondent Nos.6 and 7, who are occupants of the house-in-question.
The eviction of respondent Nos.6 and 7, even if they are termed as 'unauthorised occupants' of the first floor of the house-in-question, can only be made in accordance with law. The remedy before the petitioner is to file eviction suit before the civil court by bringing all the relevant material on record impleading all necessary parties, who are claiming their right, title and interest over the property-in-question.
No infirmity, therefore, could be found in the order impugned.
The writ petition is, accordingly, dismissed.
Order Date :- 3.3.2023 P Kesari