Court No. - 21
Case :- WRIT - C No. - 31647 of 2019 Petitioner :- Deep Chandra Nishad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajiv Kumar Mishra,Satyendra Kumar Mishra Counsel for Respondent :- C.S.C.,Sriprakash Singh
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Dr. Yogendra Kumar Srivastava,J.
The petitioner is aggrieved by the demolition order issued by the Azamgarh Development Authority- third respondent dated 13th September, 2019 whereby a notice has been issued for demolition of his alleged unauthorized construction.
The grievance of the petitioner is that an earlier order for demolition under Section 26 read with Section 27(1) of the Uttar Pradesh Urban Planning and Development Act, 1973 (for short, the "Act, 1973") was passed by the Azamgarh Development Authority on 15th March, 2019. Aggrieved by the said notice, the petitioner has filed an appeal under sub-section (2) of Section 27 of the Act, 1973 before the Commissioner, Azamgarh Division, Azamgarh, the second respondent, which is still pending. Our attention has been drawn to an order-sheet of the appellate authority, which indicates that the learned Commissioner has summoned the original record from the development authority. It is contended on behalf of the petitioner that his application for interim protection is still pending before the appellate authority. In the meantime a fresh notice has been issued for demolition of the petitioner's alleged unauthorized construction.
We have heard learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 and 2, and Sri S.P. Singh, learned Counsel appearing for respondent no. 3. With the consent of learned counsel for the parties, the writ petition is taken on board for final disposal at this stage in terms of the Rules of the Court.
Our attention has been drawn to a judgment of the Supreme Court in the case of Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, Rampur and others, (1982) 3 SCC 484, wherein the Supreme Court has observed that if an application for interim protection is pending before the appellate authority, the same should be disposed of at an early date as serious civil consequences will follow in case the application for interim protection is not disposed of. The relevant part of the judgement of the Supreme Court is extracted herein-below:
4. .......Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr. Manoj Swarup, learned Advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted."
In the present case, we find that the appeal of the petitioner is pending before the Commissioner of the Division and the original record has been summoned by him from the development authority. In view of the said facts, we are of the view that if the petitioner is not provided an interim protection, he can suffer an irreversible loss.
Accordingly, to meet the ends of justice we direct that the petitioner shall file a fresh stay application in the appeal against the fresh order dated 13th September, 2019 before the appellate authority within two weeks from the date of receipt of a certified copy of this order and in the event such an application is filed, the appellate authority shall endeavour to dispose of his application within two months from the date of communication of this order. The appellate authority shall also make efforts to decide the appeal itself expeditiously. Till the application for interim protection filed by the petitioner is disposed of, we direct that no demolition of the petitioner's construction in question shall be carried out by the respondents.
Learned counsel for the petitioner has given undertaking that no further construction shall be raised by the petitioner and the status quo shall be maintained by him.
Needless to say that we have not expressed our view on the merits of the case and any observation made in this order shall not prejudice the contention or interest of either of the parties.
Accordingly, the writ petition is disposed of.
Order Date :- 27.9.2019 SKT/-