DEEPAK MITRA Vs. ALLAHABAD DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This petition under Article 226 of the Constitution has been filed by Deepak Mitra for Mandamus directing the Allahabad Development Authority to take appropriate action to prevent the unauthorised constructions over the open courtyard shown in the sanctioned map by Respondent 2, U.N. Tripathi or to make any construction against the Building Regulations over plot No. 1-B/2, Fatehpur Bicchwa, Hashimpur Road, Allahabad. The brief facts are that the father of the petitioner constructed house No. 1-A, Tagore Town, Hashimpur Road, Allahabad, in the year 1951. On his death, the petitioner along with other co-owners inherited the above property. All around the building, there is a boundary wall and towards the southern side, the boundary wall runs from west to east, which is about 7 feet in height. Respondent 2, U.N. Tripathi purchased vacant land measuring 371.5 square yards, just adjacent to the southern boundary wall of the petitioner. He got a plan sanctioned by Allahabad Development Authority for making constructions of his residential house on the aforesaid plot, on 2-8-1986. Respondent 2, in his sanctioned plan, had shown a courtyard measuring 20 feet X 26 feet 9 inches, i.e., the open area, as required under Direction 19 issued under the U.P. (Regulation of Building Operations) Act, 1958. As per Direction 19, the land of Respondent 2 being more than 251 square yards, had to leave 20 feet set back at the rear. Regulation 19(iv) provides that on plots occupied by residential buildings only, not more than 40 percent of the length of the rear yard may be occupied by one storey building of accessory use, such as kitchen, store, i.e. servants quarters and garage. As the petitioner found that Respondent 2 was making constructions against the sanctioned plan, he filed Suit No. 367 of 1986 on 13-8-1986 for restraining the Defendant 2 from constructing the building along the southern boundary wall of the petitioner. It may be stated here that the petitioner's grievance was that Respondent No. 2 had raised a wall of 11 feet height, just adjacent to the northern wall of the petitioner and he intended to make further constructions on the same without leaving set back. On 13-8-1986, the Civil Judge granted an injunction restraining defendant 2 from making any construction on the disputed land. The petitioner alleged that since Respondent 2 despite service of injunction did not resist, he moved an application under Order 39 Rule (2A) CPC for disobedience.

(2.) Finding the attitude of Respondent 2 to be that of defiance, the petitioner approached the Allahabad Development Authority and complained on 30-9-1986, the Respondent 2 was constructing his building against the sanctioned plan. On 24-10-1986, the petitioner sent an application to the Allahabad Development Authority for taking action against Respondent 2 for checking him from making unauthorised constructions. Although the petitioner was assured by the Allahabad Development Authority that suitable action would be taken against Respondent 2, but finding that nothing was being done to prevent respondent 2 from making illegal or unauthorised constructions, the petitioner filed the present writ petition on 27-10-1986.

(3.) When the writ petition was presented on 27-10-1986, the Court directed it to be listed along with the name of Sri Ashok Mohiley, counsel for the Allahabad Development Authority. On the next date, that is, on 29-10-1986, the Court did not admit the writ petition, instead passed an order, which is as follows: