DURGA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for Issuance of a writ, order or direction in the nature of mandamus commanding the opposite parties not to demolish the construction raised by the petitioner in accordance with the map submitted by her to Nagar Palika, Unnao and to restrain them from realising compounding fee from her. Prayers for declaring the provision of Section 32 of the U. P. Urban Planning and Development Act, 1973, ultra vires the Constitution of India and for a writ in the nature of certiorari quashing the impugned notification dated 2.4.1986 have also been made.

(2.) Relevant facts of the case giving rise to the present petition as unfolded in the writ petition, are that the petitioner submitted a building plan along with the notice under Section 178 of the U. P. Municipalities Act, 1916 for short the Act, before Nagar Palika, Unnao on 19.3.1983 for permission to construct a building. For more than 30 days, the petitioner waited for the orders of the Municipal Board but the building plan submitted by her was neither approved nor disapproved within the period prescribed under the law. Therefore, the petitioner made an application on 26.4.1983 under subsection (3) of Section 180 of the Act inviting attention of the competent authority to the building plan submitted by her, as even after service of said application/notice under sub-section (3) of Section 180, no reply was received by the petitioner and her building plan was neither approved nor disapproved by the Municipal Board, the plan submitted by her stood approved. Therefore, after expiry of fifteen days of application dated 26.4.1983, she started construction of the building in accordance with the plan submitted by her and completed the same in October, 1983. It was on 7.12.1983 that Unnao-Shuklaganj Development Authority was constituted by the State Government and notice dated 12.4.1986 under Section 27 (1) of the U. P. Urban Planning and Development Act, 1973, was served upon the petitioner requiring her to show cause as to why building constructed by her be not demolished as the same was stated to have been constructed without obtaining the permission under Section 14 of the said Act. On receipt of the notice, under sub-section (10) of Section 27 of U. P. Urban. Planning and Development Act. 1973, the petitioner submitted her reply stating that the building plan submitted by her to the Municipal Board was deemed to have been sanctioned under sub-section (3) of Section 180 of the Act. Therefore, the said building cannot legally be demolished. On 10.11.1987 a notice calling upon the petitioner to deposit composition fee amounting to Rs. 5.546.20 p. within three days, was served, falling which it was threatened that the map submitted by her shall be cancelled. On receipt of the said notice, petitioner submitted her reply denying the claim of the respondents and asserted that the building in question was lawfully constructed, same, therefore, cannot be demolished on the ground of alleged want of approval of the building plan. It has also been stated that as the respondents have extended threat to cancel the building plan and to demolish the petitioner's building, she had to make application for permission to deposit the compounding fee. Petitioner, thereafter, filed the present petition in this Court.

(3.) It was on 10.12.1987 that time was granted to the respondents to file counter-affidavit and this Court further directed the respondents not to demolish the construction of the petitioner.