Allahabad High Court
Career Convent Edu. &Charitable Trust ... vs State Of U.P.Thru Addl.Chief ... on 3 September, 2020
Bench: Pankaj Kumar Jaiswal, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 10264 of 2020 Petitioner :- Career Convent Edu. &Charitable Trust Thru Chairman & Anr. Respondent :- State Of U.P.Thru Addl.Chief Secy.Revenue Deptt. Lko & Ors. Counsel for Petitioner :- Laltaprasad Misra,Amit Jaiswal,Gaurav Mehrotra,Rajeiu Kumar Tripathi Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dinesh Kumar Singh,J.
(1) Counter affidavit filed on behalf of respondent no. 4 (C.M. Application No. 48459 of 2020) and rejoinder affidavit filed on behalf of the petitioner (C.M. Application No. 48405 of 2020) are taken on record.
(2) Heard Dr. L.P. Misra along with Sri Rajeiu Kumar Tripathi, learned counsel for the petitioners and Shri Amitabh Rai, learned Additional Chief Standing Counsel for the respondents/State.
(3) By means of this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for issuance of writ of mandamus directing the respondents to adhere to the dictum of judgment and orders dated 26.03.2020 and 19.06.2020 passed Suo Motu Cognizance in a Public Interest Litigation No. 564 of 2020, whereby it has been directed not to demolish any building in execution of any order of the Courts till 10.07.2020. Petitioners have also prayed for issuance of writ of mandamus directing the respondents not to demolish any portion of building duly bounded by boundary wall of the 'Career Institute of Medical Sciences and Hospitals', 'Career Postgraduate Institute of Dental Sciences and Hospitals' and 'Career College of Nursing' situate in Village Ghaila, Pargana, Tehsil and District Lucknow, till the petitioners effectively avail the legal remedy against the order dated 29.02.2020.
(4) According to the petitioners, by the order dated 29.02.2020, the Tehsildar (Judicial), Sadar, Lucknow, after demarcating the area, came to the conclusion that out of total area, an area of 5080.55 sq.ft. has illegally been encroached by the petitioners-Educational Institution. The aforesaid order along with an earlier order of the District Magistrate dated 30.11.2019 and certain other notices etc. were challenged by the petitioners before this Court by filing Writ Petition No. 8889 (M/B) of 2020 : Career Convent Educational & Charitable Trust & Another Vs. State of U.P. and others. This Court, vide judgment and order dated 12.06.2020, dismissed the writ petition on the ground of availability of a remedy of appeal provided under Sub-Section 5 of Section 67 of the Code, 2006. Paras 18 and 19 of the judgment and order dated 12.06.2020 read as under :
"18. From perusal of the aforesaid provision, it is evident that there is a remedy of appeal provided under Sub-Section 5 of Section 67 of the U.P. Revenue Code, 2006 against the order passed by Tehsildar. Instead of approaching the appellate authority, the petitioners have rushed to this Court under Article 226 of the Constitution of India and made reckless allegations of mala fide against the District Magistrate for taking action by him as warranted in law. This Court does not find any merit and substance in the allegations mala fide against the District Magistrate and nor it would like to interfere in a case where the petitioners have usurped the public utility land and have made unauthorized construction.
19. We therefore, dismiss this writ petition with cost of Rs.10,000/- to be deposited in the Chief Minister Distress Relief Fund- Covid Care Fund, U.P."
(5) Today, during the course of arguments, learned counsel for the petitioners has submitted that an appeal against the order of demolition is pending and, therefore, the appellate authority be directed to decide the appeal on merit in accordance with law. He also pointed out that earlier the appeal against the order 29.02.2020 under Section 67 (5) of the U.P. Revenue Code, 2006 was filed before the District Magistrate/Collector, Lucknow. Now, the matter has been transferred to the Additional District Magistrate (Administration) Lucknow and, therefore, the petitioners have filed an application for transfer of appeal to before the Board of Revenue and at present the matter is sub judice before the competent authority. He further submits that against the order dated 12.06.2020 (Supra), a case, bearing Diary No. 13971 of 2020, has been filed before Hon'ble the Supreme Court and the same is pending. He has further submitted that the authority mala fidely without giving opportunity started proceedings for demolition and has damaged the property of the petitioners.
(6) Considering the fact that statutory appeal filed by the petitioners is pending, we, without entering into the merits of the case, relegate the matter to the appellate authority with a direction to him to decide the appeal of the petitioners, expeditiously, as early as possible, within a period of thirty days from the date of filing a copy of this order on merits after giving due opportunity of hearing to all the affected parties by passing a reasoned and speaking order in accordance with law. In case any adverse order is passed by the appellate authority, then, the same shall not be made effective for a period of fifteen days so that the petitioner may take legal recourse against the aforesaid order before the higher authority or to take other legal recourse as available to them. Till decision by the appellate authority, no further demolition of alleged unauthorized structure shall be carried out.
(7) With the aforesaid, the writ petition stands disposed of. All pending applications stands disposed of accordingly.
Order Date : 03.09.2020 Ajit/-