Court No. - 21
Case :- WRIT - C No. - 31637 of 2019 Petitioner :- Prem Prakash Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Satyendra Kumar Mishra,Rajiv Kumar Mishra Counsel for Respondent :- C.S.C.,Sriprakash Singh
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Dr. Yogendra Kumar Srivastava,J.
Supplementary affidavit filed today on behalf of the petitioner is taken on record.
The petitioner is aggrieved by an order/notice dated 13th September, 2019 issued by the third respondent for demolition of the petitioner's house in question.
It is stated that the third respondent had earlier passed an order on 20th October, 2016/ 27th September, 2014 purported to be under Section 27(1) of the Uttar Pradesh Urban Planning and Development Act, 1973 (for short, the "Act, 1973") for demolition of the petitioner's alleged unauthorized construction. Dissatisfied with the order of the development authority, the petitioner has preferred an appeal under sub-section (2) of Section 27 of the Act, 1973. The said appeal is still pending before the Commissioner, Azamgarh Division, Azamgarh, who has passed an interim order on 12th July, 2018. The said order is a time bound order. It appears that while the appeal is pending, the development authority has issued yet another notice dated 13th September, 2019 for demolition of the 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.
Concededly, the statutory appeal preferred by the petitioner is pending before the appellate authority, who has granted an interim protection to the petitioner which is time bound. The petitioner is aggrieved by the order of demolition and in case the petitioner's house is demolished, his appeal will be rendered infructuous.
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, has held that if the stay order is not granted in the appeal, the appeal may itself become infuctuous. 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."
Applying the said principle in the present case we find that in case the demolition order is carried out, the appeal of the petitioner will become infructuous and serious civil consequences would follow, which will be irreversible.
Having due regard to the facts of this case, we are of the view that the ends of justice would be subserved by granting liberty to the petitioner to move a fresh stay application in the pending appeal in respect of the impugned order dated 13th September, 2019 and for extension of the earlier stay order, if it has expired. In the event such an application is filed by the petitioner within two weeks from the date of receipt of a certified copy of this order, the respondent no. 2 is directed to dispose of the stay application of the petitioner expeditiously, preferably within two months thereafter and, if possible, the appeal itself will be decided within the said period. Till the application of the petitioner for interim protection is disposed of, we direct the respondents not to demolish the construction in question of the petitioner.
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/-