Allahabad High Court
Narvdeshwar Prasad Chaubey vs State Of U.P. & 3 Others on 27 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:136496 Court No. - 33 Case :- WRIT - C No. - 21881 of 2024 Petitioner :- Narvdeshwar Prasad Chaubey Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Yogesh Singh Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Yogesh Singh, learned counsel for the petitioner, Sri Ravi Prakash Pandey, learned counsel for respondent nos. 2 to 4 and the learned standing counsel for the state-respondents.
2. The instant writ petition has been filed for the following reliefs:-
"Issue a writ, order or direction in the nature of certiorari quashing the impugned demolition order dated 10.8.2023 passed by the Zonal Officer, Varanasi Development Authority, District Varanasi (respondent no.3) against petitioner and order dated 29.4.2024 passed by respondent no.2 (Annexure no.1)"
3. On 18.7.2024, following order was passed by this Court:-
"1. Heard learned counsel for the petitioner and Mr. Ravi Prakash Pandey, learned counsel for respondent nos. 2,3 and 4.
2. Counsel for the petitioner submitted that appeal under Section 27 (2) of U.P. Urban Planning and Development Act filed by the petitioner has been decided in arbitrary manner.
3. Counsel for respondent nos. 2,3 and 4 submitted that alternative remedy of revision is available against the impugned appellate order, as such, writ petition is not maintainable. He further submitted that under the impugned appellate order, the matter has been remanded before the authority concerned, for consideration of petitioner's case, as such, writ petition cannot be entertained.
4. Counsel for the petitioner shall address the Court about the alternative remedy available to the petitioner against the impugned order on the next date.
5. Put up this matter as fresh on 30.7.2024."
4. In pursuance of the earlier order dated 18.7.2024, learned counsel for the petitioner has placed the judgment of the Hon'ble Apex Court dated 1st February, 2023 passed in Civil Appeal No.5393 of 2010 (M/s Godrej Sara Leet Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Others) in order to demonstrate that the alternative remedy will not be bar in every case to file the writ petition under Article 226 of the Constitution. He further placed paragraph no.8 of the aforesaid judgment in support of his argument. He also submitted that the appeal under Section 27(2) of the U.P. Urban Planning and Development Act, 1973, filed by the petitioner, was disposed of with the direction that the Varanasi Development Authority shall re examine the claim of the petitioner after considering the claim of petitioner in proper manner. He submitted that once the appellate power has been exercised, directing the authority who has passed the demolition order, to re examine the matter then the demolition order which was passed against the petitioner, was also liable to be set aside. He further submitted that according to the bye-laws of the authority if the area of the land is less than 300 sq. mtr. no approval of map is required.
5. On the other hand, learned counsel for respondent nos. 2 to 4 has placed the judgments/orders of this Court dated 2.8.2021 passed in Writ C No.16393 of 2021 (Manju Singh vs. State of U.P. and 8 others), dated 27.8.2008 passed in Civil Misc. Writ Petition No.44271 of 2008 (Idea Mobile Communications Limited vs. State of U.P. and Others), dated 23.5.2024 passed in Writ C No.16407 of 2024 (Sant Ram Singh vs. State of U.P. and 3 Others) and that of the order of the Hon'ble Apex Court reported in AIR 1998 SC 997, State of Uttar Pradesh and Others vs. Dharmander Prasad Singh and Others in order to demonstrate that if the alternative remedy is available to the petitioner then the writ petition should not be entertained under Article 226 of the Constitution. He further submitted that in the facts and circumstances of the present matter, the petitioner's case is not covered by the ratio of law laid down in M/s Godrej Sara Lee Ltd (supra) and the instant writ petition is liable to be dismissed on the ground of alternative remedy. It is further submitted that even on merits, petitioner is not entitled to any relief in view of the grounds set up in the appeal as well as before the authority who has passed the impugned order.
6. I have considered the arguments advanced by learned counsel for the parties and perused the records.
7. There is no dispute about the fact that the demolition order has been passed against the petitioner on 10.8.2023. There is also no dispute about the fact that the appeal under Section 27(2) of the U.P. Urban Planning and Development Act, 1973 has been disposed of with the direction that petitioner should approach the Varanasi Development Authority for redressal of his claim who shall make spot inspection as well as consider the other claim of the petitioner in accordance with law.
8. So far as the alternative remedy is concerned, the Hon'ble Apex Court in the case of Committee of Management and Another Vs. Vice-Chancellor and Others reported in 2009(1) AWC 437 (SC), held that the alternative remedy will not be bar if the impugned order has been passed in violation of principal of natural justice or the order impugned is without jurisdiction. In the case of M/s Godrej Sara Lee Ltd (supra) cited by learned counsel for the petitioner, the Hon'ble Apex Court has held that if the legal issues are involved in the matter then the alternative remedy will not be bar. The judgment cited by counsel for the petitioner demonstrate that in what circumstances the alternative remedy will be bar and in what circumstances it will not be bar for filing writ petition under Article 226 of the Constitution.
9. In the instant matter, the appellate jurisdiction has been exercised by the appellate authority directing the Varanasi Development Authority to examine the claim of the petitioner afresh, after making fresh spot inspection and reexamining the records, as such, it will be in the interest of justice that the demolition order dated 10.8.2023 passed against the petitioner be set aside and the Varanasi Development Authority should examine the claim of the petitioner according to the direction issued by the appellate court.
10. The nature of the order passed by the appellate authority requires interference by this Court under Article 226 of the Constitution even after having alternative remedy under Section 41(3) of the U.P. Urban Planning and Development Act, 1973 as the entire claim will be examined by Varanasi Development Authority on merrit as such no useful purpose will be served to direct the petitioner to file revision for this limited purpose.
11. Considering the entire facts and circumstances the case, the instant writ petition is finally disposed of, modifying the appellate order dated 29.4.2024 to the extent that demolition order dated 10.8.2023 passed by respondent No.3 against the petitioner is set aside. Respondent no.3/Zonal Officer, Varanasi Development Authority, District Varanasi shall decide the matter afresh in pursuance of the appellate order dated 29.4.2024, after affording proper opportunity of hearing to the petitioner, expeditiously, preferably within a period of 6 weeks from the date of production of the certified copy of the order. The petitioner shall also cooperate in the proceeding before respondent no.3. It is further directed that petitioner shall not raise any further construction over the plot / property in question in any manner till the matter is decided by respondent no.3 as directed above.
Order Date :- 27.8.2024 C.Prakash