Allahabad High Court
Silver Buildtech Thru.Partner Sri ... vs U.P.Power Corp.Ltd.Thru.Managing ... on 14 February, 2020
Author: Anil Kumar
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 9 Case :- MISC. BENCH No. - 218 of 2020 Petitioner :- Silver Buildtech Thru.Partner Sri Khuram Beg & Anr. Respondent :- U.P.Power Corp.Ltd.Thru.Managing Director & Anr. Counsel for Petitioner :- Rajesh Kumar Singh,Mratunjay Singh,Rakesh Kumar Counsel for Respondent :- Ratnesh Chandra,Aprajita Bansal Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Rajesh Kumar Singh, learned counsel for the petitioners, Ms. Diksha Jain, learned brief holder of Ms. Aprajita Bansal, learned counsel for the respondent Nos. 1 to 3 and Sri Ratnesh Chandra, learned counsel for the respondent No. 4.
Supplementary affidavit is taken on record.
Facts, in brief, of the present case, as submitted by Sri Rajesh Kumar Singh, learned counsel for the petitioners, are to the effect that the petitioners are Builders and constructed the building over Free Hold Plot No. A-1/16, situated at Vijay Khand, Gomti Nagar, Lucknow bounded by Plot No. 1/17 East, Plot No. 1/15 West, 60 meter wide Road North and Plot No. 1/39 South.
Learned counsel for the petitioners further submitted that between the owners of the Plot No. A-1/16, Vijay Khand, Gomti Nagar, Lucknow, and petitioners-Silver Buildtech a Registered Builder Agreement was entered into on 04.02.2016 for construction of a multi storey building/flats.
On 23.03.2009, after execution of the builder agreement, the petitioner applied for electricity connection in the name of Dr. Salil Kumar Jain S/o Sri Chand Kumar Jain one of the owners of the property in question.
On 23.03.2019, opposite party No. 2/Executive Engineer, Electricity Urban Distribution Division (G.N.) Madhyanchal Vidut Vitran Nigam Limited 33/11 KV Sub Station Vibhuti Khand, Gomti Nagar, LESA, Lucknow sanctioned the electricity connection and after sanction of the load of 5.14 KW, the petitioners constructed the multi sotrey building consisting of flats. After construction of the flats, the petitioners sold the same by way of registered agreement to the prospective buyers.
Learned counsel for the petitioners further submitted that on 24.10.2016, the opposite party No. 4/Vihit Pradhikari, Lucknow Development Authority send a notice under Section 27(1) of U.P. Urban Planning and Development Act, 1973 (in short "Act, 1973") to which, the petitioner submitted his reply, however a Case No. 350/16 was registered against the petitioners before the Prescribed Authority on the ground that the petitioners have not constructed the multi storey building consisting of various flats as per the sanctioned norms.
On 16.12.2006, the Prescribed Authority passed an order against the petitioners in Case No. 350/16, under Section 27(1) of the Act, 1973.
Aggrieved by the same, the petitioners filed an Appeal No. 1635 of 2018-2019 under Section 27 (2) of the Act, 1973 before the Appellate Authority/Chairman, Lucknow Development Authority. The same is pending.
The opposite party Nos. 2 and 3 dis-connected the electricity supply to the petitioners' building on 18.10.2019, which includes the supply given to the persons, who had purchased the flats.
Learned counsel for the petitioners further submitted that the electricity supply in the multi storey building including the flats has been disconnected in most arbitrary and illegal manner by the opposite party No. 3 without providing any opportunity to the petitioners and even there is no electricity dues against the petitioners and in spite of the repeated requests and reminders, the supply was not restored. So in view of the said factual background, the petitioners have approached this Court by means of the present writ petition with the following main reliefs:-
"(i) Issue a writ, direction for quashing of Letter no. 350/2016 dated 14.10.2019 issued by opposite party no.4 to the opposite party no.2 as well as i=kad 5044 fo0 ua0 fo0 [k0 ¼xks0u0½@fnukad 18-10-2019 issued by opposite party no.2 to the opposite party no.3 for disconnection/restrained of the electricity connection of petitioners building contained as ANNEXURE no. 1 and 2 to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus thereby commanding and directing to opposite party no. 2 and 3 to not restrain the electricity supply of premises of the petitioners interest of families of flats residing there.
(iii) Issue a writ, order or direction in the nature of mandamus thereby commanding and directing to O.P.no. 2 to 4 are not restrained and disconnect the supply of the electricity in the petitioners premises till decision in Appeal No.1635 of 2018-2019 pending Before Chairman L.D.A. Lucknow."
Learned counsel for the petitioners on the basis of the supplementary affidavit filed in the Court today submitted that a letter dated 14.10.2019 has been issued by the Prescribed Authority of the LDA to the respondent No. 2, the relevant portion of the same reads as under:-
"rRdze esa voxr djkuk gS fd Jh ,l0 ds0 TkSu fuoklh&1@16] fot; [k.M xkserh uxj] y[kuÅ n~okjk Lohd`r ekufp= vuqeU; ,dy vkokl mi;ksx ds fo:} cgq;wfuV vkokl iz;kstu gsrq fuekZ.k fd;k tk jgk gS ftlds fo:} m0 iz0 uxj ;kstuk ,oa fodkl vf/kfu;e 1973 ¼;Fkk la'kksf/kr½ dh lqlaxr /kkjkvksa ds vk/khu izkf/kdj.k n~okjk okn la[;k&350@2016 fnukad 24-10-2016 dks dk;Zokgh dh x;h rFkk fnukad 16-12-2016 dks /oLrhdj.k vkns'k ikfjr fd;s x,A mRRkj izns'k uxj ;kstuk ,oa fodkl vf/kfu;e&1973 ¼;Fkk la'kksf/kr&1997½ esa v/kksgLrk{kjh dks iznRRk 'kfDr;ksa ds v/khu mDr dk;Zokgh dh izfr vkidks bl vk'k; ls izsf"kr gS fd iz'uxr LFky ij vuqeU; ,dy ;wfuV vkoklh; mi;ksx ds brj cgq;wfuV vkokl gsrq fo/kqr la;kstu u fn;k tk, vkSj ;fn fo/kqr dusD'ku Lohd`r dj fn;k x;k gks rks mDr fo/kqr dusD'ku dks fu;ekuqlkj uksfVl nsdj foPNsfnr dj fn;k tk;s rkfd ,dy ;wfuV vkoklh; esa Hkw&mi;ksx ds fo:} cgq ;wfuV fujleuks ij vadq'k yxk;k tk ldsA"
In view of the same, the electricity connection of the building has been disconnected. The said action on the part of the respondent Nos. 2 and 3, thereby disconnecting the electricity supply to the petitioners' building, which was duly sanctioned on 23.03.2019 by the opposite party No. 2 (Metre No. 7959891), is in violation of the provisions as provided under Regulation 4.36 of the Electricity Supply Code, 2005 (in short "Code, 2005").
Learned counsel for the petitioners also submitted that the reasons given by the Prescribed Authority of Lucknow Development Authority for disconnection of the electricity supply to the petitioners' building/flats, on the basis of which the electricity has been dis-connected, are without jurisdiction as against the order dated 16.12.2016 passed in Case No. 350/16, under Section 27(1) of the Act, 1973, an appeal is pending before the Appellate Authority/Chairman, Lucknow Development Authorty.
Accordingly, learned counsel for the petitioners requested that the respondent Nos. 2 and 3 be directed to restore the electricity supply to the petitioners' building in question/flats.
Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority has raised a preliminary objection to the effect that on the same cause of action, the petitioner-Silver Buildtech earlier filed a Writ Petition No. 198 (M/B) of 2020 (Silver Buildtech Thru.Partner Sri Faisal Beg & Another v. U.P.Power Corp.Ltd.Thru.Managing Director & Ors.), which was dismissed by a Division Bench of this Court vide order dated 07.01.2020, which reads as under:-
"Learned counsel for the petitioner prays for withdrawal of the writ petition.
As prayed, the writ petition is dismissed as withdrawn."
So, the present writ petition filed by the petitioners on the same cause of action is not maintainable and the same is liable to be dismissed.
Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority further submitted that so far as the present writ petition is concerned, the same has been filed by the petitioners on behalf of other allottees of the flats constructed by the petitioners in the multi sotrey building, so in view of the aforesaid facts as well as the fact that if any person is aggrieved by the disconnection of electricity, who has purchased the flat, then he/she himself/herself should come forward for redressal of his/her grievances and on his/her behalf the petitioners can not have any right to approach this Court for the relief as claimed by them in the present writ petition. As such, the present writ petition is liable to be dismissed.
After hearing learned counsel for the parties and going through the record, the position which emerges out is to the effect that the petitioners by virtue of a Registered Builder Agreement constructed the multi storey building consisting of flats on Free Hold Plot No. A-1/16, situated at Vijay Khand, Gomti Nagar, Lucknow and thereafter, they sold the flats to the prospective buyers by virtue of a registered sale deed.
Further, the electricity connection, which was initially sanctioned in the name of the owner of the building on 23.03.2019 by the opposite party No. 2 (5.14 KW, Meter No. 7959891), has been disconnected then on behalf of the buyers of the flats in the multi storey building, the petitioners approached this Court by means of the Writ Petition No. 198 (M/B) of 2020 (Silver Buildtech Thru.Partner Sri Faisal Beg & Another v. U.P.Power Corp.Ltd.Thru.Managing Director & Ors.), which was dismissed by a Division Bench of this Court vide order dated 07.01.2020 without giving liberty to the petitioners to file fresh writ petition. However, the present writ petition has been filed on the same cause of action without disclosing the facts in respect of the earlier writ petition on the same relief, so the writ petition is not maintainable on the identical reliefs.
Taking into consideration the above said arguments raised by the learned counsel for the parties and the provisions as provided under Chapter 22 Rule 7 of the Allahabad High Court Rules as well as the law laid down by the Apex Court in the case of Ashok Pratap Singh vs. State of U.P. and others 2004 (3) ESC (All) 1629 after placing the reliance on the judgment of Hon'ble the Apex Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88 in paras 15 and 16 has held as under:-
"The issue involved herein had been considered time and again by the Hon'ble Apex Court and practice of filing successive writ petitions has not only been deprecated, but the writ petitions also held to be not maintainable.
The Hon'ble Supreme Court time and again held that even if the earlier writ petition has been dismissed as withdrawn. Public Policy, which is reflected in the principle enshrined in Order XXIII Rule 1 CPC, mandates that successive writ petition be not entertained for the same relief."
The present writ petition filed by the petitioner is not maintainable under Article 226 of the Constitution of India being the second petition on the same cause of action.
At this stage, learned counsel for the petitioners submitted that against the order dated 24.10.2019 passed in the case No. 350 of 2016 under Section 27(1) of the Act, 1973, an appeal is pending and in spite of the said facts, the electricity connection of the building including the flats has been disconnected by the opposite party Nos. 2 and 3, which was initially duly sanctioned, so against the said action the purchaser of the flats may be allowed to approach before the appropriate Court for redressal of grievances.
Accordingly, we provide that so far as the persons who have purchased the flats in the building in question constructed by the petitioners-Silver Buildtech is concerned, if they so advised, may approach the appropriate Court including this Court for redresssal of their grievances. If they do so, the same may be considered as per the law.
Further, off and on, it comes to the notice of this Court that multi storey building is constructed by the builders without sanction of map from the Lucknow Development Authority or in violation of sanctioned map and the flats therein are purchased by a person after spending his/her hard earned money.
In the present case also, the purchasers have purchased the flats and started living therein and thereafter, the electricity connection has been disconnected due to fault on the part of the petitioner No. 1, who constructed the flats/multi storey building in contravention of norms/map sanctioned by the Lucknow Development Authority and while constructing the flats, no steps were taken by the concerned Authority/Officer of the Lucknow Development Authority to stop the petitioners from constructing the multi storey building on the land in question in contravention of norms/map.
Moreover, the said phenomenon is going on in the entire city of Lucknow as well as other cities where the flats have been constructed or under construction by the builder and the same are not in accordance with the norms/map sanctioned by the concerned Authorities and due to fault on the part of the builder and on account of inaction on the part of the concerned Authority in not taking any action against the builder or with regard to ongoing illegal construction as also not providing any measure so a purchaser before purchasing of flat, could come to the norms on which construction was to be made by the builders, the purchaser suffer a lot. In some case, the builder constructs an illegal building or complex in collusion with some of the employees/officers of the Development Authority.
The multi storey building consisting of flats could not be constructed in a day and if a builder constructs a building in contravention of law, norms or sanctioned map then the duty is casted upon the officer/employee of the Authority concerned to check and stop the illegal construction and take appropriate action against the builders as per the provisions provided under Section 27(1) of the Act, 1973 immediately.
Keeping in view the said facts as well as the law laid down by the Apex Court in the case of Dipak Kumar Mukherjee v. Kolkata Municipal Corpn., (2013) 5 SCC 336, wherein the Apex Court in para Nos. 7 and 8 observed as under:-
7. In Priyanka Estates International (P) Ltd. v. State of Assam [(2010) 2 SCC 27 : (2010) 1 SCC (Civ) 283] this Court refused to order regularisation of the illegal construction raised by the appellant and observed: (SCC p. 42, para 55) "55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.
Further, this Court in the case of Emerald Court Owner Resident Welfare Association v. State of U.P. Thru Secy. and Others, 2014 SCC OnLine All 14817 : (2014) 104 ALR 527 : (2014) 140 AIC (Sum 26) 12, in para No. 66 observed as under:-
"66. Illegal and unauthorized constructions are on the rampant rise with the connivance of the officials of development authority and such activities is required to be dealt with by firm hand otherwise builders/colonizers would be encouraged to raise constructions under the garb of sanction which otherwise is gross violation of the Building Regulations and the Act. The ultimate aim is planned development and the flat owners should not fall prey to such activities as the ultimate desire of the family of common man is to have a shelter of his own. Other fundamental rights is also associated with dependent upon the right to property especially right to shelter. Unlawful constructions in violation of building regulation is definitely against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings/group housing."
We feel it appropriate to hear the Secretary, Lucknow Development Authority, so we directed Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority to inform Sri Mangala Prasad, Secretary, Lucknow Development Authority to appear before this Court and assist us on the matter in question that what steps should be taken up by the Lucknow Development Authority in order to check that the multi storey building in the city of Lucknow should be constructed as per the norms/sanctioned plan.
Accordingly, Sri Mangala Prasad, Secretary, Lucknow Development Authority appeared before this Court and we have apprised him the position as stated hereinabove and sought his suggestion to which he sought time to give suggestions in this regard after consulting the concerned Authority of the Lucknow Development Authority. Accordingly, we reserved the judgment and further directed the Lucknow Development Authority to file the suggestions which is to be given by Sri Mangala Prasad, Secretary, Lucknow Development Authority in the matter in question.
On 16.01.2020, the Secretary, Lucknow Development Authority gave his suggestions on the point in issue through Sri Ratnesh Chandra, Advocate, the same were taken on record.
The suggestions given by Sri Mangala Prasad, Secretary, Lucknow Development Authority are as under:-
"1- izkf/kdj.k fodkl {ks= esa lEcfU/kr fcYMlZ@fodkldrkZ fuekZ.k LFky ij bl vk'k; dk cksMZ vo'; yxok;sa] ftldk izk:i fuEuor gS& d½ ekufp= Lohd`fr dh frfFk [k½ ekufp= oS/krk dh vof/k x½ ijfeV la[;k ?k½ IykV la[;k p½ xzkm.M Q~yksj dojst N½ ryksa dh la[;k t½ ;wfuV dh la[;k rFkk mudk ;wfuVokj {ks=Qy >½ iz'uxr fuekZ.k dk Hkw&mi;ksx V½ jsjk jftLVsª'ku uEcj 2- ¶YkSV ds jftLVsª'ku@vykVesUV ds le; fcYMlZ@ fodkldrkZ dks Lohd`fr ekufp= dh izekf.kr izfr nsuk vfuok;Z gksxkA 3- ¶YkSV ds fucU/ku ds iwoZ lEcfU/kr fodkldrkZ@fcYMlZ }kjk iw.kZrk izek.k&i= izkIr fd;k tk; rFkk fodz;&foys[k ds lkFk iw.kZRkk izek.k&i= layXu gksus ds mijkUr gh fucU/ku dh dk;Zokgh dh tk;A 4- ¶YkSV ds fucU/ku ds iwoZ fodkldrkZ@fcYMlZ }kjk izkf/kdj.k ls vkWuykbu VªkalQj ijeh'ku ysuk vfuok;Z gksxk ,oa VªkalQj ijeh'ku laYkXu gksus ds mijkUr gh fucU/ku foHkkx }kjk fucU/ku dh dk;Zokgh dh tk;A 5- izR;sd Hkou dk LFkk;h fo|qr dusD'ku izkf/kdj.k dh vkWuykbu vukifRRk izkIr gksus ds mijkUr gh fo|qr foHkkx }kjk dh tk;A 6- lhoj ,oa ty dusD'ku Hkh tydy@uxj fuxe }kjk izkf/kdj.k dh vkWuykbu vukifRRk izkIr gksus ds mijkUr dh tk;A 7- izkf/kdj.k }kjk Lohd`r xzqi gkmflax dh Lohd`fr;ksa dk O;kid izpkj&izlkj fd;k tk; rFkk izkf/kdj.k dh csolkbV ij Hkh Mkyk tk;A 8- fCkYMlZ@ fodkldrkZ }kjk xzqi gkmflax@¶YkSV~l ds Lohd`r ekufp= esa tks LFky@Hkwfe ikdZ ,oa [kqyk LFky] ekxZ] lkeqnkf;d lqfo/kka,] mi;ksfxrk,a gsrq vkjf{kr gS] mu ij fdlh Hkh izdkj ls vfrdze.k@ fuekZ.k ugha fd;k tk;sxkA"
Keeping in view the aforesaid, we dispose of the writ petition with the direction to the competent Authority/Secretary, Lucknow Development Authority to issue necessary instructions/pass an order, within four weeks from today, to ensure the compliance of the suggestions given by him, noted above.
No order as to costs.
Order Date :- 14.02.2020 Arun/-
Reserved Court No. - 9 Case :- MISC. BENCH No. - 218 of 2020 Petitioner :- Silver Buildtech Thru.Partner Sri Khuram Beg & Anr.
Respondent :- U.P.Power Corp.Ltd.Thru.Managing Director & Anr.
Counsel for Petitioner :- Rajesh Kumar Singh,Mratunjay Singh,Rakesh Kumar Counsel for Respondent :- Ratnesh Chandra,Aprajita Bansal Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Rajesh Kumar Singh, learned counsel for the petitioners, Ms. Diksha Jain, learned brief holder of Ms. Aprajita Bansal, learned counsel for the respondent Nos. 1 to 3 and Sri Ratnesh Chandra, learned counsel for the respondent No. 4.
Supplementary affidavit is taken on record.
Facts, in brief, of the present case, as submitted by Sri Rajesh Kumar Singh, learned counsel for the petitioners, are to the effect that the petitioners are Builders and constructed the building over Free Hold Plot No. A-1/16, situated at Vijay Khand, Gomti Nagar, Lucknow bounded by Plot No. 1/17 East, Plot No. 1/15 West, 60 meter wide Road North and Plot No. 1/39 South.
Learned counsel for the petitioners further submitted that between the owners of the Plot No. A-1/16, Vijay Khand, Gomti Nagar, Lucknow, and petitioners-Silver Buildtech a Registered Builder Agreement was entered into on 04.02.2016 for construction of a multi storey building/flats.
On 23.03.2009, after execution of the builder agreement, the petitioner applied for electricity connection in the name of Dr. Salil Kumar Jain S/o Sri Chand Kumar Jain one of the owners of the property in question.
On 23.03.2019, opposite party No. 2/Executive Engineer, Electricity Urban Distribution Division (G.N.) Madhyanchal Vidut Vitran Nigam Limited 33/11 KV Sub Station Vibhuti Khand, Gomti Nagar, LESA, Lucknow sanctioned the electricity connection and after sanction of the load of 5.14 KW, the petitioners constructed the multi sotrey building consisting of flats. After construction of the flats, the petitioners sold the same by way of registered agreement to the prospective buyers.
Learned counsel for the petitioners further submitted that on 24.10.2016, the opposite party No. 4/Vihit Pradhikari, Lucknow Development Authority send a notice under Section 27(1) of U.P. Urban Planning and Development Act, 1973 (in short "Act, 1973") to which, the petitioner submitted his reply, however a Case No. 350/16 was registered against the petitioners before the Prescribed Authority on the ground that the petitioners have not constructed the multi storey building consisting of various flats as per the sanctioned norms.
On 16.12.2006, the Prescribed Authority passed an order against the petitioners in Case No. 350/16, under Section 27(1) of the Act, 1973.
Aggrieved by the same, the petitioners filed an Appeal No. 1635 of 2018-2019 under Section 27 (2) of the Act, 1973 before the Appellate Authority/Chairman, Lucknow Development Authority. The same is pending.
The opposite party Nos. 2 and 3 dis-connected the electricity supply to the petitioners' building on 18.10.2019, which includes the supply given to the persons, who had purchased the flats.
Learned counsel for the petitioners further submitted that the electricity supply in the multi storey building including the flats has been disconnected in most arbitrary and illegal manner by the opposite party No. 3 without providing any opportunity to the petitioners and even there is no electricity dues against the petitioners and in spite of the repeated requests and reminders, the supply was not restored. So in view of the said factual background, the petitioners have approached this Court by means of the present writ petition with the following main reliefs:-
"(i) Issue a writ, direction for quashing of Letter no. 350/2016 dated 14.10.2019 issued by opposite party no.4 to the opposite party no.2 as well as i=kad 5044 fo0 ua0 fo0 [k0 ¼xks0u0½@fnukad 18-10-2019 issued by opposite party no.2 to the opposite party no.3 for disconnection/restrained of the electricity connection of petitioners building contained as ANNEXURE no. 1 and 2 to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus thereby commanding and directing to opposite party no. 2 and 3 to not restrain the electricity supply of premises of the petitioners interest of families of flats residing there.
(iii) Issue a writ, order or direction in the nature of mandamus thereby commanding and directing to O.P.no. 2 to 4 are not restrained and disconnect the supply of the electricity in the petitioners premises till decision in Appeal No.1635 of 2018-2019 pending Before Chairman L.D.A. Lucknow."
Learned counsel for the petitioners on the basis of the supplementary affidavit filed in the Court today submitted that a letter dated 14.10.2019 has been issued by the Prescribed Authority of the LDA to the respondent No. 2, the relevant portion of the same reads as under:-
"rRdze esa voxr djkuk gS fd Jh ,l0 ds0 TkSu fuoklh&1@16] fot; [k.M xkserh uxj] y[kuÅ n~okjk Lohd`r ekufp= vuqeU; ,dy vkokl mi;ksx ds fo:} cgq;wfuV vkokl iz;kstu gsrq fuekZ.k fd;k tk jgk gS ftlds fo:} m0 iz0 uxj ;kstuk ,oa fodkl vf/kfu;e 1973 ¼;Fkk la'kksf/kr½ dh lqlaxr /kkjkvksa ds vk/khu izkf/kdj.k n~okjk okn la[;k&350@2016 fnukad 24-10-2016 dks dk;Zokgh dh x;h rFkk fnukad 16-12-2016 dks /oLrhdj.k vkns'k ikfjr fd;s x,A mRRkj izns'k uxj ;kstuk ,oa fodkl vf/kfu;e&1973 ¼;Fkk la'kksf/kr&1997½ esa v/kksgLrk{kjh dks iznRRk 'kfDr;ksa ds v/khu mDr dk;Zokgh dh izfr vkidks bl vk'k; ls izsf"kr gS fd iz'uxr LFky ij vuqeU; ,dy ;wfuV vkoklh; mi;ksx ds brj cgq;wfuV vkokl gsrq fo/kqr la;kstu u fn;k tk, vkSj ;fn fo/kqr dusD'ku Lohd`r dj fn;k x;k gks rks mDr fo/kqr dusD'ku dks fu;ekuqlkj uksfVl nsdj foPNsfnr dj fn;k tk;s rkfd ,dy ;wfuV vkoklh; esa Hkw&mi;ksx ds fo:} cgq ;wfuV fujleuks ij vadq'k yxk;k tk ldsA"
In view of the same, the electricity connection of the building has been disconnected. The said action on the part of the respondent Nos. 2 and 3, thereby disconnecting the electricity supply to the petitioners' building, which was duly sanctioned on 23.03.2019 by the opposite party No. 2 (Metre No. 7959891), is in violation of the provisions as provided under Regulation 4.36 of the Electricity Supply Code, 2005 (in short "Code, 2005").
Learned counsel for the petitioners also submitted that the reasons given by the Prescribed Authority of Lucknow Development Authority for disconnection of the electricity supply to the petitioners' building/flats, on the basis of which the electricity has been dis-connected, are without jurisdiction as against the order dated 16.12.2016 passed in Case No. 350/16, under Section 27(1) of the Act, 1973, an appeal is pending before the Appellate Authority/Chairman, Lucknow Development Authorty.
Accordingly, learned counsel for the petitioners requested that the respondent Nos. 2 and 3 be directed to restore the electricity supply to the petitioners' building in question/flats.
Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority has raised a preliminary objection to the effect that on the same cause of action, the petitioner-Silver Buildtech earlier filed a Writ Petition No. 198 (M/B) of 2020 (Silver Buildtech Thru.Partner Sri Faisal Beg & Another v. U.P.Power Corp.Ltd.Thru.Managing Director & Ors.), which was dismissed by a Division Bench of this Court vide order dated 07.01.2020, which reads as under:-
"Learned counsel for the petitioner prays for withdrawal of the writ petition.
As prayed, the writ petition is dismissed as withdrawn."
So, the present writ petition filed by the petitioners on the same cause of action is not maintainable and the same is liable to be dismissed.
Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority further submitted that so far as the present writ petition is concerned, the same has been filed by the petitioners on behalf of other allottees of the flats constructed by the petitioners in the multi sotrey building, so in view of the aforesaid facts as well as the fact that if any person is aggrieved by the disconnection of electricity, who has purchased the flat, then he/she himself/herself should come forward for redressal of his/her grievances and on his/her behalf the petitioners can not have any right to approach this Court for the relief as claimed by them in the present writ petition. As such, the present writ petition is liable to be dismissed.
After hearing learned counsel for the parties and going through the record, the position which emerges out is to the effect that the petitioners by virtue of a Registered Builder Agreement constructed the multi storey building consisting of flats on Free Hold Plot No. A-1/16, situated at Vijay Khand, Gomti Nagar, Lucknow and thereafter, they sold the flats to the prospective buyers by virtue of a registered sale deed.
Further, the electricity connection, which was initially sanctioned in the name of the owner of the building on 23.03.2019 by the opposite party No. 2 (5.14 KW, Meter No. 7959891), has been disconnected then on behalf of the buyers of the flats in the multi storey building, the petitioners approached this Court by means of the Writ Petition No. 198 (M/B) of 2020 (Silver Buildtech Thru.Partner Sri Faisal Beg & Another v. U.P.Power Corp.Ltd.Thru.Managing Director & Ors.), which was dismissed by a Division Bench of this Court vide order dated 07.01.2020 without giving liberty to the petitioners to file fresh writ petition. However, the present writ petition has been filed on the same cause of action without disclosing the facts in respect of the earlier writ petition on the same relief, so the writ petition is not maintainable on the identical reliefs.
Taking into consideration the above said arguments raised by the learned counsel for the parties and the provisions as provided under Chapter 22 Rule 7 of the Allahabad High Court Rules as well as the law laid down by the Apex Court in the case of Ashok Pratap Singh vs. State of U.P. and others 2004 (3) ESC (All) 1629 after placing the reliance on the judgment of Hon'ble the Apex Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88 in paras 15 and 16 has held as under:-
"The issue involved herein had been considered time and again by the Hon'ble Apex Court and practice of filing successive writ petitions has not only been deprecated, but the writ petitions also held to be not maintainable.
The Hon'ble Supreme Court time and again held that even if the earlier writ petition has been dismissed as withdrawn. Public Policy, which is reflected in the principle enshrined in Order XXIII Rule 1 CPC, mandates that successive writ petition be not entertained for the same relief."
The present writ petition filed by the petitioner is not maintainable under Article 226 of the Constitution of India being the second petition on the same cause of action.
At this stage, learned counsel for the petitioners submitted that against the order dated 24.10.2019 passed in the case No. 350 of 2016 under Section 27(1) of the Act, 1973, an appeal is pending and in spite of the said facts, the electricity connection of the building including the flats has been disconnected by the opposite party Nos. 2 and 3, which was initially duly sanctioned, so against the said action the purchaser of the flats may be allowed to approach before the appropriate Court for redressal of grievances.
Accordingly, we provide that so far as the persons who have purchased the flats in the building in question constructed by the petitioners-Silver Buildtech is concerned, if they so advised, may approach the appropriate Court including this Court for redresssal of their grievances. If they do so, the same may be considered as per the law.
Further, off and on, it comes to the notice of this Court that multi storey building is constructed by the builders without sanction of map from the Lucknow Development Authority or in violation of sanctioned map and the flats therein are purchased by a person after spending his/her hard earned money.
In the present case also, the purchasers have purchased the flats and started living therein and thereafter, the electricity connection has been disconnected due to fault on the part of the petitioner No. 1, who constructed the flats/multi storey building in contravention of norms/map sanctioned by the Lucknow Development Authority and while constructing the flats, no steps were taken by the concerned Authority/Officer of the Lucknow Development Authority to stop the petitioners from constructing the multi storey building on the land in question in contravention of norms/map.
Moreover, the said phenomenon is going on in the entire city of Lucknow as well as other cities where the flats have been constructed or under construction by the builder and the same are not in accordance with the norms/map sanctioned by the concerned Authorities and due to fault on the part of the builder and on account of inaction on the part of the concerned Authority in not taking any action against the builder or with regard to ongoing illegal construction as also not providing any measure so a purchaser before purchasing of flat, could come to the norms on which construction was to be made by the builders, the purchaser suffer a lot. In some case, the builder constructs an illegal building or complex in collusion with some of the employees/officers of the Development Authority.
The multi storey building consisting of flats could not be constructed in a day and if a builder constructs a building in contravention of law, norms or sanctioned map then the duty is casted upon the officer/employee of the Authority concerned to check and stop the illegal construction and take appropriate action against the builders as per the provisions provided under Section 27(1) of the Act, 1973 immediately.
Keeping in view the said facts as well as the law laid down by the Apex Court in the case of Dipak Kumar Mukherjee v. Kolkata Municipal Corpn., (2013) 5 SCC 336, wherein the Apex Court in para Nos. 7 and 8 observed as under:-
7. In Priyanka Estates International (P) Ltd. v. State of Assam [(2010) 2 SCC 27 : (2010) 1 SCC (Civ) 283] this Court refused to order regularisation of the illegal construction raised by the appellant and observed: (SCC p. 42, para 55) "55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors.
Further, this Court in the case of Emerald Court Owner Resident Welfare Association v. State of U.P. Thru Secy. and Others, 2014 SCC OnLine All 14817 : (2014) 104 ALR 527 : (2014) 140 AIC (Sum 26) 12, in para No. 66 observed as under:-
"66. Illegal and unauthorized constructions are on the rampant rise with the connivance of the officials of development authority and such activities is required to be dealt with by firm hand otherwise builders/colonizers would be encouraged to raise constructions under the garb of sanction which otherwise is gross violation of the Building Regulations and the Act. The ultimate aim is planned development and the flat owners should not fall prey to such activities as the ultimate desire of the family of common man is to have a shelter of his own. Other fundamental rights is also associated with dependent upon the right to property especially right to shelter. Unlawful constructions in violation of building regulation is definitely against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings/group housing."
We feel it appropriate to hear the Secretary, Lucknow Development Authority, so we directed Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority to inform Sri Mangala Prasad, Secretary, Lucknow Development Authority to appear before this Court and assist us on the matter in question that what steps should be taken up by the Lucknow Development Authority in order to check that the multi storey building in the city of Lucknow should be constructed as per the norms/sanctioned plan.
Accordingly, Sri Mangala Prasad, Secretary, Lucknow Development Authority appeared before this Court and we have apprised him the position as stated hereinabove and sought his suggestion to which he sought time to give suggestions in this regard after consulting the concerned Authority of the Lucknow Development Authority. Accordingly, we reserved the judgment and further directed the Lucknow Development Authority to file the suggestions which is to be given by Sri Mangala Prasad, Secretary, Lucknow Development Authority in the matter in question.
On 16.01.2020, the Secretary, Lucknow Development Authority gave his suggestions on the point in issue through Sri Ratnesh Chandra, Advocate, the same were taken on record.
The suggestions given by Sri Mangala Prasad, Secretary, Lucknow Development Authority are as under:-
"1- izkf/kdj.k fodkl {ks= esa lEcfU/kr fcYMlZ@fodkldrkZ fuekZ.k LFky ij bl vk'k; dk cksMZ vo'; yxok;sa] ftldk izk:i fuEuor gS& d½ ekufp= Lohd`fr dh frfFk [k½ ekufp= oS/krk dh vof/k x½ ijfeV la[;k ?k½ IykV la[;k p½ xzkm.M Q~yksj dojst N½ ryksa dh la[;k t½ ;wfuV dh la[;k rFkk mudk ;wfuVokj {ks=Qy >½ iz'uxr fuekZ.k dk Hkw&mi;ksx V½ jsjk jftLVsª'ku uEcj 2- ¶YkSV ds jftLVsª'ku@vykVesUV ds le; fcYMlZ@ fodkldrkZ dks Lohd`fr ekufp= dh izekf.kr izfr nsuk vfuok;Z gksxkA 3- ¶YkSV ds fucU/ku ds iwoZ lEcfU/kr fodkldrkZ@fcYMlZ }kjk iw.kZrk izek.k&i= izkIr fd;k tk; rFkk fodz;&foys[k ds lkFk iw.kZRkk izek.k&i= layXu gksus ds mijkUr gh fucU/ku dh dk;Zokgh dh tk;A 4- ¶YkSV ds fucU/ku ds iwoZ fodkldrkZ@fcYMlZ }kjk izkf/kdj.k ls vkWuykbu VªkalQj ijeh'ku ysuk vfuok;Z gksxk ,oa VªkalQj ijeh'ku laYkXu gksus ds mijkUr gh fucU/ku foHkkx }kjk fucU/ku dh dk;Zokgh dh tk;A 5- izR;sd Hkou dk LFkk;h fo|qr dusD'ku izkf/kdj.k dh vkWuykbu vukifRRk izkIr gksus ds mijkUr gh fo|qr foHkkx }kjk dh tk;A 6- lhoj ,oa ty dusD'ku Hkh tydy@uxj fuxe }kjk izkf/kdj.k dh vkWuykbu vukifRRk izkIr gksus ds mijkUr dh tk;A 7- izkf/kdj.k }kjk Lohd`r xzqi gkmflax dh Lohd`fr;ksa dk O;kid izpkj&izlkj fd;k tk; rFkk izkf/kdj.k dh csolkbV ij Hkh Mkyk tk;A 8- fCkYMlZ@ fodkldrkZ }kjk xzqi gkmflax@¶YkSV~l ds Lohd`r ekufp= esa tks LFky@Hkwfe ikdZ ,oa [kqyk LFky] ekxZ] lkeqnkf;d lqfo/kka,] mi;ksfxrk,a gsrq vkjf{kr gS] mu ij fdlh Hkh izdkj ls vfrdze.k@ fuekZ.k ugha fd;k tk;sxkA"
Keeping in view the aforesaid, we dispose of the writ petition with the direction to the competent Authority/Secretary, Lucknow Development Authority to issue necessary instructions/pass an order, within four weeks from today, to ensure the compliance of the suggestions given by him, noted above.
No order as to costs.
Order Date :- 14.02.2020 Arun/-