Court No. - 40
Case :- WRIT - C No. - 14000 of 2021 Petitioner :- Sanju Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailesh Kumar Pathak Counsel for Respondent :- C.S.C.,Purnendu Bajpai
Hon'ble Manoj Misra,J. Hon'ble Jayant Banerji,J.
Heard counsel for the petitioner; the learned Standing Counsel for the respondent no. 1 and Shri Purnendu Bajpai for the respondent nos. 2 and 3.
The petitioner claims himself to be bhumidhar with transferable rights of plot no. 185, area 2.1440 Hectare at Village Panigaon Bangar, Tehsil Mant, District Mathura. He is aggrieved by impugned ex-parte order dated 18.12.2019, by which, the Competent Officer, Yamuna Expressway Industrial Development Authority (YEIDA), Greater Noida has directed him to remove constructions/dhaba from plot no. 185 within 15 days.
The impugned order dated 18.12.2019 proceeds on the premise that the area where constructions were raised falls within the notified industrial area under the jurisdiction of YEIDA; and that the constructions were raised without permission. The impugned order further recites that a show-cause notice was issued to the petitioner through registered Speed Post but, despite service of notice on 27.11.2019, no reply was submitted therefore, as from the report it was clear that constructions were raised without permission of YEIDA, the constructions were liable to be removed/demolished.
Though the petitioner has also challenged the notification dated 27.08.2007 by which the concerned area has been notified as an industrial area but there is not much pleading to demonstrate as to how such notification is invalid. In so far as the impugned order dated 18.12.2019 is concerned, the case of the petitioner is that the constructions stood from before the declaration of the area as an industrial area and therefore, no permission was required at the time when such constructions were made.
Shri Purnendu Bajpai, who has appeared for the respondent nos. 2 and 3, has submitted that by virtue of Section 12 of the U.P. Industrial Area Development Act, 1976, the provisions of Chapter VII and Sections 30, 32, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 53, and 58 of the U.P. Urban Planning and Development Act, 1973, as re-enacted and modified by the U.P. President's Act (Re-enactment with Modifications) Act, 1974, would mutatis mutandis apply to the Authority with adaptation that- (a) any reference to the aforesaid Act shall be deemed to be a reference to this Act; (b) any reference to the Authority constituted under the aforesaid Act shall be deemed to be a reference to the Authority constituted under this Act; (c) any reference to the Vice-Chairman of the Authority shall be deemed to be a reference to the Chief Executive Officer of the Authority. Shri Bajpai, thus, submits that by virtue of Section 12 of the 1976 Act, the provisions of Section 41(3) of the U.P. Urban Planning and Development Act, 1973, would be available and therefore, the petitioner has a right to file an application before the State Government against the order of demolition.
The learned counsel for the petitioner submits that since the impugned order of demolition is ex-parte order and it violates the principles of natural justice, existence of an alternative remedy would be no bar for the writ Court to entertain a challenge to such an order.
As, in the impugned order, a finding is returned that the same was passed after service of notice upon the petitioner, it is not a case where the other side has admitted that the order has been passed in violation of principles of natural justice. Therefore, we deem it appropriate to dispose of this petition by giving liberty to the petitioner to invoke the powers of the State Government available under sub-section (3) of Section 41 of the U.P. Urban Planning and Development Act, 1973, read with the provisions of Section 12 of the U.P. Industrial Area Development Act, 1976.
It is expected that if any such application is filed by the petitioner, the same shall be addressed on merits, expeditiously, preferably, within two months from the date of filing of such application along with a copy of this order. The petitioner shall also be at liberty to apply for stay of the impugned order, if so advised.
Order Date :- 24.8.2021 A. V. Singh