Allahabad High Court
Najiya Siddiqui vs State Of U.P. And 4 Others on 12 September, 2022
Bench: Manoj Kumar Gupta, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 21 Case :- WRIT - C No. - 27290 of 2022 Petitioner :- Najiya Siddiqui Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jai Singh Counsel for Respondent :- C.S.C.,Vaibhav Dixit Hon'ble Manoj Kumar Gupta,J.
Hon'ble Jayant Banerji,J.
Heard Sri Jai Singh, learned counsel for the petitioner and Sri Abhinav Krishna Srivastava, learned counsel appearing for respondent nos. 2 and 5. The instant petition has been filed for the following relief:-
"a. Issue a writ, order or direction in the nature of mandamus commanding the respondents to demolish the house no. 129/12, L Block Babupurwa, Kanpur Nagar as early as possible.
b. Issue a writ, order or direction in the nature of mandamus commanding th respondent no.4 to decide the application dated 16.8.2022 (Annexure-16 to the writ petition) within time limit.
c. Issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to do the needful in accordance with the letter dated 1.11.2021 (Annexure-15 to the writ petition) issued by respondent no.2."
The petitioner claims to be owner of a building situated within limit of Nagar Nigam, Kanpur Nagar. According to her, the building is in dilapidated condition and, therefore, the Nagar Nigam exercising powers under Section 331 of the U.P. Municipal Corporation Act, 1959 issued notice to the petitioner and other occupants on 31.8.2020 to demolish the building failing which, it will be sole responsibility of the noticee. At this stage, the petitioner filed Writ-C No. 10852 of 2021 (Najiya Siddiqui Vs. State of U.P. and 2 others). The said writ petition was dismissed as withdrawn. The order passed in the said writ petition is extracted below:-
"Petitioner by way of present petition seeks following direction :-
"a. Issue a writ, order or direction in the nature of Mandamus commanding the Respondents to demolish the house no.129/12, L Block Babupurwa, Kanpur Nagar as early as possible.
b. Issue a writ, order or direction in the nature of Mandamus commanding the Respondent No.3 to decide the application dated 17.10.2020 (Annexure-10 to the writ petition) within time limit."
Since relief runs contrary to the provision contained under Section 331 of the Uttar Pradesh Municipal Corporations Act, 1959, which mandates:
"331. Removal of structures, etc., which are in ruins or likely to fall. - (l) If it shall at any time appear to the [Municipal Commissioner] that any structure (including under this expression any building, wall, parapet, pavement, floor, steps,railing, door or window frames or shutters or roof, or other structure and anything affixed to or projecting from or resting on, any building, wall, parapet or other structure) is in a ruinous condition or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the [Municipal Commissioner] may, by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair, such structure or thing or do one or more of such things and to prevent all cause of danger therefrom.
(2) The [Municipal Commissioner] may also, if he thinks fit, require the said owner or occupier by the said notice, either forthwith or before proceeding to pull down, secure, remove or repair the said structure or thing, to set up a proper and sufficient hoard or fence for the protection of passers-by and other persons, with a convenient platform and hand-rail, if there be room enough for the same and the [Municipal Commissioner] shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence.
(3) If it appears to the [Municipal Commissioner] that the danger from a structure which is ruinous or about to fall is imminent he may, before giving notice as aforesaid or before the period of notice expires, fence off, take down, secure or repair the said structure or take such steps or cause such work to be executed as may be required to arrest the danger.
(4) Any expenses incurred by the [Municipal Commissioner] under sub-section (3) shall be paid by the owner or occupier of the structure.
(5) (a) Where the [Municipal Commissioner] is of opinion whether on receipt of an application or otherwise that the only or the most convenient means by which the owner or occupier of a structure such as is referred to in sub-section (1) can pull down, secure, remove or repair such structure, is by entering any of the adjoining premises belonging to some other person the [Municipal Commissioner] after giving such person a reasonable opportunity of stating any objection may, if no such objection is raised or if any objection which is raised appears to him invalid or insufficient, by an order in writing, authorize the said owner or occupier to enter such adjoining premises.
(b) Every such order bearing the signature of the [Municipal Commissioner] shall be a sufficient authority to the person in whose favour it is made, or to any agent or person employed by him for this purpose, after giving to the owner of the premises reasonable written notice of his intention so to do, to enter upon the said premises with assistants and workmen, at any time between sunrise and sunset, and to execute the necessary work.
(c) In executing any work under this section as little damage as can be, shall be done to the adjoining owner's property, and the owner or occupier of premises for the benefit of which the work is done, shall-
(i) cause the work to be executed with the least practicable delay;
(ii) pay compensation to any person who sustains damage by the execution of the said work."
and to avoid the liability, if any which may arise, the petitioner has filed this petition seeking mandamus which in teeth of provisions contained under Section 331 of the Act, 1959 cannot be granted. When faced with such situation, learned counsel for the petitioner prays for withdrawal of petition. Prayer is allowed.
Petition stands dismissed as withdrawn."
While withdrawing the earlier writ petition, no liberty was reserved in favour of the petitioner to file a fresh petition. Consequently, filing of the instant petition on the same cause of action amounts to gross abuse of process of law. The writ petition is dismissed with a cost of Rs. 20,000/.
Order Date :- 12.9.2022 sfa/ (Jayant Banerji, J) ( Manoj Kumar Gupta, J)