Court No. - 48
Case :- WRIT - C No. - 14985 of 2019 Petitioner :- Shri Ram Dev Shastri Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Raghwendra Prasad Mishra Counsel for Respondent :- C.S.C.,Dharmendra Singh Chauhan
Hon'ble Siddharth,J.
Heard learned counsel for the petitioner, learned Standing Counsel on behalf of the respondent nos.1 to 3 and Sri D.S. Chauhan, learned counsel for the respondent nos.4 and 5.
The petitioner is aggrieved by the appellate order dated 7.12.2017 passed by the respondent no.2/Commissioner, Agra Division, Agra and the order dated 26.12.2018 passed by the State Government, respondent no.1 under Section 27(2) and Section 41 of the U.P. Urban Planning and Development Act. 1973.
After the order were passed against the petitioner by the respondent no.4, the petitioner had approached this Court alongwith other aggrieved persons by way of Writ C No.47266 of 2017, which was disposed of by Division Bench of this Court by its order dated 23.10.2017 directing the petitioners to avail remedy before the appellate authority and the appellate authority was directed to decide the appeal within six weeks on merits and in accordance with law and the demolition orders were directed not to be implemented till the appeal is decided.
Learned counsel for the petitioner has pointed out to the appellate order dated 7.12.2017, which shows that the appeal has been dismissed on the ground of being barred by limitation when this Court clearly directed in its order dated 13.10.2017 that the appellate authority shall consider the appeal of the petitioners on merits and then pass appropriate orders. The revisional authority, State Government, has upheld the order of appellate court on the ground that it has been passed after giving opportunity of hearing to the petitioners and it is in accordance with law and does not calls for any interference by the revisional authority.
Learned counsel for the respondent nos.4 and 5 has supported the appellate and revisional orders on the ground that although the appellate order has been passed on the basis of the bar of limitation in filing of the appeal but the revisional court has recorded the findings that constructions made by the petitioners are in the prohibited area in the "khadar" area wherein no construction can be done and therefore, the orders of the appellate authority as well as the revisional authority do not call for any interference. The revisional authority has held that National Green Tribunal has passed various orders directing removal of such constructions from the river banks.
After considering the rival submissions, I find that despite this Court's order dated 13.10.2017 passed in bunch of writ petitions alognwith Writ C No.47266 of 2017 directing the appellate authority to decide the appeal on merits, the appellate authority has rejected the same on the ground of limitation. The revisional authority has also not considered this aspect of the matter and has held that the appellate authority has decided the appeal after full opportunity of evidence and hearing to the petitioners which is not borne out from the order of the Appellate Authority at all.
The order of the Revisional Court suffers from the vice of perverse findings and the appellate order is not on the merits of the case but has been passed only on the ground that the appeal of the petitioner is barred by law of limitation.
In view of the above discussions, the order dated 7.12.2017 passed by the respondent no.2/Commissioner, Agra Division, Agra and the order dated 26.12.2018 passed by the State Government, respondent no.1, are hereby quashed.
The appellate authority, respondent no.2/Commissioner, Agra Division, Agra is directed to decide the appeal of the petitioner, without raising any objection of limitation, within a period of three months from the date of production of certified copy of this order on merits of the dispute.
The writ petition is allowed.
Till fresh order is passed by the authority concerned, no demolition of construction made by the petitioner shall be carried out by the Development Authority concerned.
Order Date :- 30.4.2019 Ruchi Agrahari