Court No. - 10
Case :- WRIT - C No. - 27354 of 2018 Petitioner :- Paras Nath Agrahari Respondent :- Varanasi Development Authority And 2 Others Counsel for Petitioner :- Pratik J. Nagar Counsel for Respondent :- Vivek Verma
Hon'ble Vikram Nath,J.
Hon'ble Daya Shankar Tripathi,J.
Heard Sri J. Nagar, learned Senior Advocate assisted by Sri Pratik J. Nagar, learned counsel for the petitioner and Sri Vivek Verma, learned counsel representing respondent-Varanasi Development Authority.
By means of this petition under Article 226 of the Constitution, the petitioner has prayed for quashing of the impugned notice dated 17th July, 2018 apparently on the ground that the impugned notice is in utter disregard to the provisions of the U.P. Urban Planning and Development Act, 1973 (in short referred to as the 1973 Act). Secondly the petitioner's land being less than 100 sq. mts. does not require any sanction and therefore the notice is bad and lastly the respondent no.3 is acting in a high-handed manner in issuing the impugned notice.
Earlier, proceedings were initiated against the petitioner under Section 27 of the 1973 Act and an order of demolition was passed by the Zonal Officer of the Authority on 09.09.2014 (Annexure-3 to the petition). Against the said order, the petitioner preferred an Appeal under Section 27(2) of the 1973 Act before the Chairman of the Authority. The said appeal was allowed by order dated 22nd January, 2018 and after setting aside the demolition order dated 09.09.2014, the matter was remanded to the Authority for taking a fresh decision after affording due opportunity to the petitioner. The order of the Commissioner further provided that non-compoundable portion be demolished and the compoundable portion be compounded as per the prescribed policy. Copy of the said order has been filed as Annexure-4 to the petition.
After the remand order, the petitioner was given a notice by the Zonal Officer on 16th February, 2018 requiring the petitioner to submit five copies of the building map required for componding along with two certified copies of the sale deed and also a computerized extract of Khatauni of the current period and any other document which the petitioner may wish to file (Annexure-5).
In response to the said notice, the petitioner submitted a reply dated 20th February, 2018 (Annexure-6) stating that five sets of the building plan alongwith two copies of the sale deed and other relevant papers have already been submitted before the concerned Officer on 16th June, 2015 as such, the request for compounding may be considered and appropriate orders passed. Annexure-7 to the petition is a photo copy of the letter of the petitioner dated 16th June, 2015 addressed to the Zonal Officer, Varanasi Development Authority which contains a receipt of endorsement. Thereafter, the Assistant Engineer, Building of the Authority has issued the impugned notice dated 17th July, 2018, which is in response to the letter of the petitioner dated 25th May, 2018, which has not been annexed with the petition but according to it objection no.2 is withdrawn and the petitioner is directed to correct the further two objections mentioned in the said notice which reads as under:-
(i) that the constructed areas of compoundable and non-
compoundable be shown in the building map; and
(ii) that the fourth floor cannot be compounded, therefore, it may be removed.
It is this notice dated 17th July, 2018 that the petitioner has challenged.
Further, Annexure-9 is an application dated 19.07.2018 in response to the notice dated 17th July, 2018 praying for recalling the said notice and also praying for not harassing the petitioner any further and also to get the site inpsected by the Secretary, Varanasi Development Authority. Further a Government Order dated 1st May, 1997 has been filed as Annexure-10 to the petition.
The submission advanced by Sri Nagar, learned Senior Advocate is that after remand the Development Authority has not passed any fresh order and in absence of any such order having been passed, notice for demolition is bad in law.
On the other hand, Sri Verma, learned counsel for the Development Authority submits that despite repeated request the petitioner is not willing to provide necessary documents and on the other hand he is pressurizing the Development Authority to compound all constructions which are unauthorized and illegal and which cannot be compounded. Sri Verma also submits that Government Order dated 01.05.1997 is one of the basis of the petitioner's argument that over a plot of less than 100 sq. mts., no sanction building plan is required. He further submits that the same Government Order clearly provides that though sanction may not be required but necessary requirement is to be fulfilled even for construction over a plot of less than 100 sq. mts. area that a building plan duly prepared by an Architect along with his certificate to the effect that the bulding plan has been designed as per the Master-plan and bye-laws. In the absence of such building plan and certificate, as required, being not submitted, the constructions over even a plot of less than 100 sq. mts. would not be permissible under law. He also submits that the petitioner may be directed to submit the building plan as required and as and when the required papers are submitted to the Development Authority, a conscious decision would be taken.
Sri Nagar, learned Senior Advocate states that within ten days, the petitioner would submit all required documents and therafter the Authority may take a decision at the earliest.
Considering the aforesaid facts and circumstances of the case, we dispose of this petition directing the petitioner to submit necessary documents within ten days from today, whereupon the Development Authority will proceed to take a conscious decision in accordance with law within a period of two weeks. It is also provided that the demolition, if necessary, will take place after the decision is taken by the Development Authority. It would however be open to the Varanasi Development Authority to proceed with the required action pursuant to the impugned notice, if the petitioner fails to submit the documents within ten days.
Order Date :- 23.8.2018 Ashutosh (Daya Shankar Tripathi,J.) (Vikram Nath,J.)