Court No. - 4
Case :- WRIT - C No. - 39126 of 2019 Petitioner :- P.W.D. Co-Operative And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vineet Kumar Singh,Mr. H.N. Singh (Sr. Advt.) Counsel for Respondent :- C.S.C.,Sunil Kumar Misra
Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri Vineet Kumar Singh, learned Counsel for the petitioners, learned Standing Counsel for respondent nos.1 & 6 and Sri S.K. Misra, learned Counsel for respondent nos.2 to 5.
Since the facts of this case are not disputed, with the consent of the learned Counsel for the parties, we are disposing of this writ petition finally at the admission stage without calling for any counter affidavit.
This writ petition has been filed by the petitioners for the following relief :-
"A. Issue a writ, order or direction in the nature of certiorari quashing the order dated 06.11.2019 (Annexure 17 to this writ petition) passed by the Executive Engineer, Construction Division 17 Uttar Pradesh Awas Vikas Parishad, Kanpur Nagar.
B. Issue a writ, order or direction in the nature of mandamus commanding the respondents to return the equal area of the land of plot No.320 area 1-2-0 to the petitioner and hand over its peaceful possession within the time specified by the Hon'ble Court.
C. Issue a writ, order or direction in the nature of mandamus commanding the respondents not to adopt any collusive measure against the petitioner during the pendency of the writ petition before this Hon'ble Court."
It appears that before filing this writ petition, petitioners had earlier approached this Court by means of Writ C No.24712 of 2010, which was finally disposed of by another Co-ordinate Bench of this Court on 13.8.2019 with the following directions :-
"Accordingly, we dispose of the writ petition granting liberty to the petitioner to move a fresh representation before the fifth respondent within two weeks along with a certified copy of this order. In event if any such application is filed, the same shall be considered in accordance with law expeditiously preferably within three months from the date of communication of this order to the respondent No. 5.
Needless to say that we have not expressed our opinion on the merits of the case.The fifth respondent shall pass an order independently, in accordance with law."
The impugned order has been passed in compliance of the order of this Court dated 13.8.2019 by which the representation filed by the petitioner before respondent no.5 has been rejected. As already noted in the order of this Court dated 13.8.2019, the dispute between the parties is to the effect that whether the petitioners have encroached on land in excess of the area allotted to them.
It is contended by learned Senior Counsel that the impugned order has been passed by the respondent no.5 in teeth of the letter of Additional Housing Commissioner dated 4.7.2019, addressed to the Collector, Kanpur Nagar, copy whereof has been brought on record as Annexure No.12 to the writ petition by which he has requested the Collector, respondent no.6 that in dispute akin to one involved in the instant writ petition, the land of the allottee may be got demarcated on the spot either by the Collector or any of his sub-ordinate officers.
It is further contended that it is evident from the perusal of the impugned order that no such exercise as contemplated in the letter of the Additional Housing Officer dated 4.7.2019 was undertaken by respondent no.5 before passing the impugned order.
Having heard learned Counsel for the parties and perused the impugned order as well as the other material brought on record, we find that there is force in the submissions made by the learned Counsel for the petitioner. In our opinion, the respondent no.5 before passing the impugned order should have adhered to the letter of the Additional Housing Commissioner dated 4.07.2019.
In view of the above, writ petition succeeds and is allowed, impugned order dated 6.11.2019 is quashed and the matter is remitted back to the respondent no.5 with a direction to pass a fresh order to the petitioner's representation after complying the letter of Additional Housing Commissioner dated 4.7.2019.
Order Date :- 29.11.2019 S. Singh