Court No. - 50
Case :- WRIT - C No. - 38899 of 2019 Petitioner :- Guddu Pathak @ Rakesh Pathak Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Syed Ahmed Faizan,Syed Farman Ahmad Naqvi(Senior Adv.) Counsel for Respondent :- C.S.C.,Devi Prasad Mishra
Hon'ble Salil Kumar Rai,J.
Vakalatnama filed by Sri Arun Kumar, Advocate on behalf of respondent nos. 2, 3, 5 and 6 is taken on record.
Heard the counsel for the parties.
The present writ petition has been filed against the order dated 5.4.2018 passed by the Zonal Officer, Allahabad Development Authority and the order dated 22.10.2019 passed by the Commissioner, Prayagraj Division, Prayagraj dismissing the appeal filed by the petitioner against the order of the Zonal Officer.
The orders have been passed under Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as, 'Act, 1973') directing the petitioner to demolish the constructions allegedly made on Plot No. 365 in Shantipuram Awas Yojna, Prayagraj. A perusal of the records shows that the petitioner was issued a show cause notice alleging that he was in illegal occupation of the aforesaid plot and in response to the said show cause notice, the petitioner filed his reply stating that his constructions existed on Plot No.
366 and, therefore, the show cause notice be recalled. The Zonal Officer vide his order dated 5.4.2018 rejected the reply of the petitioner and directed the petitioner to demolish his constructions within fifteen days from the date of the service of the order.
It appears from a perusal of the show cause notice that the petitioner was served a notice to explain the constructions made on Plot No. 365. A perusal of the reply of the petitioner shows that in his reply, the petitioner had stated that his constructions were existing on Plot No. 366 and not Plot No. 365. In his order dated 5.4.2018, the Zonal Authority has rejected the reply of the petitioner without recording any finding as to whether the constructions of the petitioner existed on Plot No. 365 or on Plot No. 366 and the consequences if the constructions existed on Plot No. 366. The order dated 22.10.2019 passed by the Commissioner, Prayagraj Division, Prayagraj also suffers from the same shortcoming.
The fact that in his reply, the petitioner had specifically stated that his constructions existed on Plot No. 366 while the show cause notice related only to Plot No. 365 required the Zonal Officer to record findings regarding the plea of the petitioner. A finding was required as to whether the constructions referred to in the show cause notice existed on Plot No. 365 or on Plot No.
366. A reading of the impugned orders shows that no findings have been recorded by the Zonal Officer as well as the appellate authority on the said plea of the petitioner.
It is the admitted case of the petitioner that Plot No. 366 had also been acquired by the State Government and has been allotted to the development authority. The petitioner states that he was in occupation of Plot No. 366 before the notification issued under Section 4 of the Land Acquisition Act, 1894 and has filed an application under Section 28 to withdraw the notification regarding Plot No. 366. The aforesaid facts may not legalise the occupation and constructions of the petitioner over Plot No. 366 and the constructions existing over Plot No. 366 may be liable to be demolished by following the prescribed procedure and after giving the petitioner an opportunity of hearing. The show cause notice has to state the plot over which the constructions are required to be demolished and the order requiring demolition has to record a finding that constructions exist on the plot referred in the show cause notice.
Sri Arun Kumar, Advocate representing the respondent - Allahabad Development Authority, i.e., respondent nos. 2, 3, 5 and 6 has fairly conceded that it is a fit case case where the matter should be remanded back to the Zonal Officer to pass fresh orders giving detailed reasons on the facts stated in the reply submitted by the petitioner.
In view of the aforesaid, the orders dated 5.4.2018 passed by the Zonal Officer, Allahabad Development Authority and the order dated 22.10.2019 passed by the Commissioner, Prayagraj Division, Prayagraj are, hereby, quashed. The writ petition is allowed.
The matter is remanded back to the Zonal Authority to pass fresh orders in accordance with law. The Zonal Authority shall pass fresh orders within a period of one month from the date a certified copy of this order is produced before him by either of the parties after giving an opportunity of hearing to the petitioner.
Order Date :- 28.11.2019 Satyam