Mahendra Pal v. State of U.P. and
Case Details
Neutral Citation No. - 2023:AHC:154712 Court No. - 52 Case :- WRIT - C No. - 21646 of 2021 Petitioner :- Mahendra Pal And 2 Others Respondent :- State Of U P And 4 Others Counsel for Petitioner :- A.P. Singh Counsel for Respondent :- C.S.C. Hon'ble Saurabh Srivastava,J. Civil Misc. Amendment Application No. 8 of 2022 1. Amendment preferred in the shape of correcting the title of the case is hereby allowed and the same shall be treated as part of the petition. Order on petition 1. Heard Ms. Pallavi Rani, learned counsel for the petitioners, Shri Raj Kumar, learned Standing Counsel appearing for respondent nos. 1 to 4 and Shri Achal Singh, learned counsel appearing for respondent no. 5, Gaon Sabha. 2. The present petition has been filed seeking the following relief:- "i. To issue a writ, order or direction in the nature of mandamus directing the Respondent No. 2 to ensure a thorough probe regarding the illegal demolition of Pakka Houses of the petitoners which were built upon the land duly provided on residential lease to the petitioners and fix the accountability of the concerned officers accountable for such illegal act of demolition. ii. To issue a writ, order or direction in the nature of mandamus directing the Respondent concerned to repay the compensation to the petitioners against such a grave loss in a time bound manner; iii. To issue a writ, order or direction in the nature of mandamus directing the Respondent concerned to decide the application/Representation dated 2.3.2021 of the petitioners (filed as Annexure No.6 to this writ petition)." 3. The case of the petitioners is that all the petitoners have been allotted lease for residential purpose in the year 1998 after due process of law and the possession has been handed over on dated 10.06.1998, certificate of the same has been appended alongwith petition available at page no.21 as Annexure No. 3, without issuing any show cause or pre-intimation, certain constructions which has been raised by the petitioners in shape of boundary over the plot no. 403 has been demolished. Having been
Legal Reasoning
aggrieved by the same, petitioners preferred Civil Misc. Writ Petition No. 630 of 2021 (Mahendra Pal vs. State of U.P. and 4 others), when the above mentioned writ petition has been taken up by the Co-ordinate Bench of this Court, the demolition proceedings, which has been initiated culminated into demolition of the boundaries raised by the petitioners and as such, Writ-C No. 1168 of 2021, which has been dismissed as infructuous. 4. When the matter has been enquired by the petitioners that under which circumstances the unwarranted action carried out by the respondents without any notice to the petitioners, it has been informed that under some report and the physical inspection of the plot concerned, proceedings has been initiated which culminated into demolition of the certain construction in shape of boundary has been finalised by the responding authorities. Being aggrieved the same approval, the instant writ petition for seeking order or direction in the nature of mandamus, directing the respondent no. 2 to ensure thorough probe regarding the illegal demolition of the pakka house of the petitioners which were build upon land provided on the residential lease to the petitioners and fix accountability of the concerned officer accountable for such illegal act of demolition and also repay the compensation to the petitioners against such a grave loss in time bound manner.
Legal Reasoning
5. In reply to the contention raised in the instant petition, learned counsel for the respondent nos. 1, 2 and 3 preferred a detailed counter affidavit through which it has been demonstrated that since the residential lease extended in favour of the petitioners were conditional one, all the petitioners were under the obligation to raise construction in shape of residential house within the prescribed period of three years from the date of issuance of the extension of lease, upon failure of the compliance of the 2 of 7 terms and conditions, the residential lease extended in favour of the petitioners has automatically stood cancelled and the land vest with the Gram Sabha. 6. For substantiating the argument raised by Shri Raj Kumar Singh, learned Standing Counsel, he sought the attention of the Court over Annexure No. 1 appended along with the counter affidavit starts at page no. 11 wherein the details of plot no. 403 situated at Village Khalari, Tehsil Naraini, District Banda has been mentioned, wherein total 17 persons have been extended residential lease for carrying out constructions of their houses. A report has been submitted on dated 20.10.2021 through which it has been transpired that against all the 17 persons, respondent no. 3 reported before the respondent no.2, wherein allottees available at serial nos. 7, 8, 10, 11 and 15 have been mentioned against whom the specific orders for cancellation of lease have been passed by competent authority i.e. respondent no. 2 vide order dated 25.01.2007, so far as regarding the petitioners are concerned, it was only reported that the house has not been constructed. 7. Certain facts which has been apprised through the instant petition by way of submitting the photographs alongwith the pleadings extended therein as well as the same is by and large admitted at the time of filing the counter affidavit that certain demolition proceeding has been initiated, it is the case of the petitioner that the demolition proceeding has been initiated over the plot for the parcel of the plot no. 403 which was allotted to the petitioners, whereupon a boundary wall has been constructed, on the precise query has made before the learned counsel for the petitioner that whether any proper construction in the shape of household was there or not, she was unable to answer the same for want of instructions, but even though the demolition proceeding has been admitted by the State- respondents in their counter affidavit and accepted the same over plot no. 403 itself. 3 of 7 8. It is the version of the State-respondents that the demolition has been carried out for plot no. 403 with regard to the illegal construction which has been raised by one Mr. Kailash S/o Ram Gopal Patel and not related
Decision
to the petitioners and as such the grounds taken up in the writ petition for alleging the illegal construction carried out by the respondents cannot be taken up by the petitioners and the same is only for the institution of the instant petition. Even for the sake of the arguments if the entire facts which have been apprised through the counter affidavit along with the submissions extended by Mr. Raj Kumar Singh, learned Standing Counsel appearing for respondent nos. 1, 2 and 3, it is crystal clear from the report submitted by concerned Assistant Collector as well as Sub-Division Officer, Naraini, District Banda that there is hardly any specific orders for cancellation of the lease against the petitioners, whereas the specific cancellation orders are available in the report itself against the similarly situated persons who have been extended residential lease over the same plot situated in the same village, meaning thereby no proceedings has been initiated with regard to the cancellation of the lease as culminated into order dated 27.01.2007, passed against the persons available in the report mentioned in the table of lease holders at serial nos. 7, 8, 10, 11 and 15. It is the argument extended by Mr. Raj Kumar Singh, learned Standing Counsel that there is hardly any necessity for passing the specific orders in pursuance to the Rule 115 (Q) of U.P.Z.A.L.R. Rules, 1952 which is quoted here below: "[115-Q. The person to whom the housing site is allotted shall be required to build a house and begin to reside in it or to use it for the purpose for which it was built within three years from the date of allotment : If he fails to do so or uses it at any time for a purpose other than that for which it was allotted his rights shall be extinguished and the site may be taken over by the Land Management Committee : 4 of 7 Provided that in the case of a person belonging to Schedule Caste or Schedule Tribe the aforesaid time limit for building of the house shall not apply.]" 9. By bare perusal of the rules cited by learned Standing Counsel quoted above, the wordings are crystal clear that the site allotted shall be required to build a house and begin to reside in it or to use it for the purpose for which it was built within three years from the date of allotment. 10. The case of the petitioners comes under the wordings mentioned in the rules to use it for the purpose. Learned counsel for the respondents failed to demonstrate that the parcel of the plot no. 403 was not in use for the purpose by the petitioners at the same time, the reliance over the rights extinguished against the petitioners regarding the plot which may be taken over by the Land Management Committee, is also not very much clear with the counter affidavit preferred by the State-respondents and no specific date has been mentioned that when the determination has been drawn that the plot in question which has been extended in favour of the petitioners through the lease has been automatically stood cancelled and the portion of the plot no. 403 vest with the Land Management Committee. 11. In light of the arguments as well as the pleadings extended in the shape of counter and rejoinder affidavits exchanged between the parties, it is very much clear that at no point of time the petitioners have been given any type of opportunity of hearing, if in any case, the terms and prerequisite condition has been infringed by them. It is a settled proposition of law pronounced by Hon'ble Apex Court in catena of judgment from time to time that principles of natural justice must be followed and the same is not required to be demonstrated in any rule or the act. It is the law which has been derived from the Constitution of India in favour of the citizen of the country, the principle of audi alteram partem is the mandatory provision which has to be followed before taking any action against the persons specially belongs to the rural areas over 5 of 7 having a lesser means to carry out their livelihood in the minimum possible circumstances. 12. In the instant matter, lease which has been extended for residential purpose in favour of the petitioners have been determined automatically vested with the Land Management Committee is the illegal perception drawn by the State-respondents and as such, in spite of passing the specific lease cancellation order against certain persons, no specific orders have been passed against the petitioners which is the high handedness of the responding authorities for dealing with the similarly situated persons with their own kith and kins which is not permissible in the eye of law. The analogy which has been derived from the Rule 115(Q) of the U.P.Z.A. and L.R. Rules, 1952, the State-respondents were duty bound to pass the specific order with regard to cancellation of residential lease extended in favour of the petitioners by way of giving proper opportunity of hearing and as such, the entire proceedings which has been developed through the counter affidavit that the lease extended in favour of the petitioners stoods automatically cancelled, cannot be sustained and as such the State-respondents are hereby directed to call upon the petitioners by way of giving a specific notice with regard to the violation of prerequisite terms and conditions of the residential lease which has been extended in favour of them and only after receiving their reply, the State- respondents will be at liberty to proceed further. 13. The above mention exercise shall be finalized by the responding authorities as expeditiously as possible preferably within a period of eight months from the date of production of certified copy of this order. However, it is made clear that the portion of the parcel of the plot no. 403 extended in shape of residential lease in favour of the petitioners, shall not be disturbed in any manner whatsoever by the State-respondents. 14. At highly belated stage, learned Standing Counsel informed that certain constructions have been carried out in shape of overhead water tank, if the proposed construction has already been initiated over the same 6 of 7 parcel of the land of plot no. 403 which has been extended in shape of residential lease in favour of the petitioners, the petitioners may be suitably accommodated against the land measuring 150 square yard which was already extended in shape of residential lease in favour of the petitioners. 15. The writ petition stands disposed of, accordingly. Order Date :- 2.8.2023 M.S. Ansari Digitally signed by :- MOHD SAQIB ANSARI High Court of Judicature at Allahabad 7 of 7