Allahabad High Court
Dr. Kailash Singh & Others vs State Of U.P.Thr.Prin.Secy.Deptt.Of ... on 19 December, 2013
Bench: Devi Prasad Singh, Ashok Pal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 27 Case :- MISC. BENCH No. - 10533 of 2013 Petitioner :- Dr. Kailash Singh & Others Respondent :- State Of U.P.Thr.Prin.Secy.Deptt.Of Home, Lucknow & Others Counsel for Petitioner :- Anurag Kumar Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Sanjay Bhasin And Case :- MISC. BENCH No. - 10529 of 2013 Petitioner :- M/S Lucknow Public College Thr.Director Sushil Kumar & Anr. Respondent :- State Of U.P.Thr.Prin.Secy.(Home) U.P.Civil Sectt.Lko.& Ors. Counsel for Petitioner :- Prashant Singh 'Atal' Counsel for Respondent :- C.S.C.,Mahesh Chandra Hon'ble Devi Prasad Singh,J.
Hon'ble Ashok Pal Singh,J.
Affidavits have been exchanged between the parties.
Heard learned counsel for the parties and perused the record.
These two writ petitions have been preferred under Article 226 of the Constitution with the common reliefs, hence, with the consent of learned counsel for the parties, they are being decided by this common Judgment and order at admission stage.
Admittedly, the petitioners have been allotted plots/land by the Lucknow Development Authority and U.P. Housing Board, Lucknow. After allotment of the plots/land, the petitioners have applied for sanction of maps. The Lucknow Development Authority and the U.P. Housing Board Board, Lucknow have sanctioned the maps of the petitioners in accordance to rules and thereafter, the petitioners visited their sites for starting construction work. They were stopped to raise constructions by certain persons including the Members of Kissan Union and some villagers of the vicinity. Feeling aggrieved, the petitioners have approached this court under Article 226 of the Constitution of India by filing the instant writ petitions.
Learned counsel for the Development Authorities(Lucknow Development Authority as well as U.P. Housing Board, Lucknow) do not dispute that the petitioners are the lawful allottees of the plots and their maps have been sanctioned for construction of permanent structure over the land allotted to them.
In pursuance of the order passed by this court, Sri J. Ravindir Goud, Senior Superintendent of Police, Lucknow, has filed an affidavit and has brought on record that seven persons have submitted the complaints with the grievance that they have been stopped to raise constructions by the Members of Bhartiya Kissan Union. These seven persons are namely, Sri Susheel Kumar, Sri Janki Prasad, Sri Mahesh Pal, Sri Ajay Kumar Saxena, Sri Jamal Ahmad, Sri Himanshu Gupta and again Sri Himanshu Gupta.
The Senior Superintendent of Police, Lucknow has pointed out that Members of the Bhartiya Kissan Union have stopped the lawful allottees to raise constructions over their plots. In some of the cases, matter has been settled, but, in other cases, the dispute is still under discussion.
Sri Anurag Yadav, District Magistrate, Lucknow has also filed an affidavit pointing out similar problems where the allottees have been prevented to raise constructions over their land which have been allotted to them by the Development Authorities or the Housing Board.
On the other hand, Mohd. Abid Ali, learned counsel appearing as an intervenor in Writ Petition No. 10533 (M/B) of 2013 submits that the plots allotted to the petitioners are water body, reservoirs or pond and they should be maintained in the same capacity as they exist, by the development authorities in view of law laid down by the Apex Court in the case reported in AIR 2001 SC 3215, Hinch Lal Tewari Vs Kamla Devi and Others.
So far as the argument advanced by Sri Abid Ali, learned counsel for the intervenor that the development authorities cannot allot the plots while preparing the lay out plans of the area which is a water body reservoir or a pond in terms of revenue record in view of law laid down by the Apex Court in the case of Hinch Lal Tewari(Supra) is concerned, seems to be correct. It is the duty of the developments authorities to maintain them in the same form as a part of public recreation centres or picnic spot.
Lucknow Development Authority, Lucknow while filing the Counter Affidavit has denied that the plots allotted to the petitioners of the writ petition no. 10533(M/B) of 2013 are water reservoir or ponds which has been refuted by Sri Abid Ali, learned counsel for the intervenor by filing an affidavit. Whether the plots allotted to the petitioners are water reservoirs or ponds, is a disputed question of fact which requires thorough probe.
Now, coming to first limb of argument of learned counsel for the the petitioners that lawful allottees have been prevented by Members of a certain union/association or person to raise constructions over the land allotted to them is concerned, is a matter of deep concern for this court. In case, the lawful allottees are prevented by some persons by use of muscle power or mobism, then, it shall be antithesis of the rules of law.
The report sent by the Senior Superintendent of Police, Lucknow also reveals that at different places, Members of Bhartiya Kissan Union have tried to prevent the construction of lawful allottees. Identical writ petitions have also been filed in this court from time to time, where the lawful allottees have been prevented to raise constructions on the basis of sanctioned plan by a group of persons or by some anti-social elements or by politically associated persons. Right to peaceful enjoyment of property is a fundamental right conferred to a citizen subject to statutory and constitutional limitation as held by the Division Bench of this court in the case reported in 2013 LCD 2048, Shree Narayan Singh Versus State of U.P. & Others. Accordingly, once a plot or land is allotted by Development Authority to a citizen and he/she wants to raise constructions over it in pursuance of the sanctioned plan and statutory limitation, then no person has right to interfere with such construction. It appears that in the district of Lucknow, it is a routine feature where the constructions are stopped by a group of private persons or associations/union interfering with the rights to enjoyment of the property of lawful allottees. The government must deal strictly with such anti social elements. The Senior Superintendent of Police, Lucknow must ensure that the lawful allottees are permitted to raise constructions in pursuance of the sanctioned plan and appropriate task force must be constituted by the district administration to deal with such situation for ensuring that the citizens may enjoy their properties which have been allotted to them in accordance to law.
Considering the problems with regard to interference by the anti social elements or alike persons with the property of lawful allotttess to secure the public interest, it is necessary to issue directions so that it may not be necessary for a citizen to approach this court again and again for an incident that he/she is stopped with the construction work by a person or group of persons over his/her land.
We have been informed by learned Standing Counsel that nodal officers have been appointed to look into such matters, but, we feel that the nodal officers have failed to discharge their obligations except indulging into negotiations with the persons who interfere with the constructions of the houses of the lawful allotttees and keep the matter pending for an indefinite period. Accordingly, we dispose of both the writ petitions finally with the following directions :-
1. The District Magistrate/Senior Superintendent of Police, Lucknow shall constitute a Task Force containing sufficient number of persons of Arm Forces like P.A.C. headed by the Sub. Divisional Magistrate and a Deputy Superintendent of Police to deal with such complaints where any person/ association or union interferes with the construction work raised by lawful allottee in the city or district of Lucknow. More than one Task Force may be established to meet out the requirement in the district. The Senior Superintendent of Police, Lucknow shall appoint a police officer not below the rank of Additional Superintendent of Police to monitor the functioning of the Task Force so constituted. District Magistrate Lucknow shall nominate an Additional District Magistrate to provide necessary assistance.
2. Whenever, a complaint is received that Lucknow Development Authority or U.P. Housing Board has allotted a plot which is a water reservoir or is a pond, then respective Development Authority or Housing Board, shall look into such complaint and in case, in the revenue record, it is found that the said plot is a water reservoir or a pond, then alternative accommodation shall be provided to such allottee immediately say within a period of two months after recording the finding with due communication to the complainant. The Development Authority or the Housing Board, Lucknow shall appoint an officer to look into such complaints to decide whether the plot allotted to an allottee is a water reservoir or a pond in the revenue record or not. Opportunity of hearing shall be provided to the complainant.
3. Right of a citizen to protest against unlawful action of development authority is a fundamental right, but, that protest may be made at appropriate place (not at the allottted plot or vicinity) without disturbing the peace and tranquility of the society and also without interfering with the right of a peaceful enjoyment of the property by a lawful allottee.
4. Whenever, a complaint is received that the lawful allottee intending to raise construction over the premises in pursuance of the sanctioned plan is being prevented by anti-social elements or person or a group of persons or by an association, the Task Force so constituted shall ensure to remove such hurdle and shall further ensure that lawful allottee is permitted to raise construction over the plot in pursuance of the sanction plan and requisite number of police force shall be deployed for the security of the allottee during the construction work, if necessary. It shall be open to police to register F.I.R. & proceed in accordance to law against disturbing elements.
Let Lucknow Development Authority as well as U.P. Housing Board Lucknow appoint a nodal officer to receive complaints to adjudicate the controversy in terms of the directions issued hereinabove with regard to ponds and water reservoirs within a period of one month and also issue appropriate directions or circulars accordingly.
The District Magistrate/Senior Superintendent of Police, Lucknow shall also pass appropriate directions/circulars for constituting the Task Force in terms of the directions issued hereinabove within a period of one month.
Let a compliance report be submitted to this court immediately after one month.
With the consent of learned counsel for the parties and directions issued hereinabove, both the writ petitions are decided finally.
Order Date :- 19.12.2013 AKS