Court No. - 29
Case :- WRIT - C No. - 20400 of 2021 Petitioner :- Waqar Rizvi Respondent :- Commissioner And 2 Others Counsel for Petitioner :- Pooja Agarwal Counsel for Respondent :- C.S.C.,Arun Kumar,Pawan Kumar Singh
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Piyush Agrawal,J.
By means of this writ petition, challenge has been made to the order dated 24.3.2021 and the order dated 3.12.2020 whereby 'No Objection Certificate' given to the petitioner for construction has been cancelled.
It is a case where, the petitioner applied for N.O.C. for the property under Waqf Imambara Syed Gulam Haidar registered under the Shiya Central Waqf Board, Uttar Pradesh. The petitioner is a mutawalli and entered into an agreement with the builder for construction of building in the premises of Waqf property. As per the Government Order dated 14.3.1994, the sanction of map for construction of a building was not required for the Waqf property. In view of above, the NOC was issued in favour of the petitioner on 28.3.2017 but immediately thereupon on 18.4.2017, it was kept in abeyance with restrain on construction. When no order was passed in furtherance the petitioner preferred a writ petition to seek permission to raise construction. This Court in the earlier writ petition issued a direction for consideration of the case. The petitioner made a comprehensive representation, however the respondents withdrawn / cancelled the N.O.C. by the order dated 3.12.2020. The petitioner preferred an appeal but the same has also been dismissed.
The counsel submits that when N.O.C. was issued, it could not have been withdrawn without a proper opportunity of hearing. In view of above, the impugned order deserves to be set aside.
We have considered the submissions made by the counsel for the petitioner and perused the records.
The N.O.C. was issued in favour of the petitioner pursuant to the Government Order dated 14.3.1994 which was withdrawn / cancelled in the year 2020. The withdrawal of N.O.C. is in reference to the order passed in the year 2020 withdrawing the earlier decision / order dated 14.3.1994. We find that order dated 14.3.1994 was issued in utter violation of the legal provisions. The construction within the boundaries of Nagar Nigam or Development Authority can be after the approval of map and not otherwise. The provision for it could not have been superseded by an administrative order. It is unfortunate that the State had issued a Government Order dated 14.3.1994 in ignorance of the statutory provisions requiring sanction of the map. It seems to be for that reason alone that subsequently the order dated 14.3.1994 was withdrawn. There is otherwise nothing on record to show the approval of map for raising construction and the N.O.C. was operative only for a period of a month or so as it was kept in abeyance yet petitioner raised construction unauthorisely and has been demolished.
In view of above, as there is nothing on record to show the approval of map for raising the construction as per the statutory provisions of law i.e. either under municipal laws or the laws applicable to the development authorities, the petitioner could not have raised the construction. The construction was yet raised unauthorisedly and has been demolished. The aforesaid is one part, otherwise the N.O.C. granted to the petitioner was in ignorance of the provisions of law as to avoid perpetuation of illegality and withdrawal of N.O.C. without opportunity of hearing cannot be said to be illegal. The principle of natural justice if it for legal claim, the petitioner was thus asked to clarify as to how N.O.C. was valid going against the statutory provisions of law. What prevails a statutory provisions and not an administrative order. If an area falls under Nagar Nigam, the sanction of map has to be taken as per the law applicable to the Nagar Nigam and if it falls under the development authority then as per the rules applicable to the development authority. The petitioner could not answer it.
Taking aforesaid into consideration, we do not find any reason to cause interference with the order impugned herein.
The writ petition fails and is accordingly dismissed.
Order Date :- 27.9.2021 Rahul Dwivedi/-
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(Piyush Agrawal,J.) (Munishwar Nath Bhandari,A.C.J.)