OM PRAKASH SAHANI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Shri Shesh Kumar leaned counsel for the petitioner and Shri Atul Mehra learned counsel for the Development Authority. Petitioner before this Court is aggrieved by an order of the Varanasi Development Authority dated 07.11.2006 whereunder the petitioner has been directed to demolish the unauthorized construction of basement and the shops on Ist, IInd and IIIrd floors. The order records that despite notice dated 22.07.2000, the petitioner did not submit any reply nor he presented himself before the Development Authority and that despite assurance he did not submitted any compounding map. The petitioner not being satisfied with the order so passed filed an appeal before the Commissioner, Varanasi Region, Varanasi who is also as the Chairman of the Development Authority under Section 27(2) of the Urban Planning and Development Act, 1973. In the memo of appeal it was stated that the constructions had been raised in the year 1955. The petitioner has got the shop vacated on 07.09.1999 and the same has been repaired. Such repairing needs no permission from the Development Authority in view of Section 52 of the Act. The appeal filed by the petitioner has been dismissed by the Commissioner vide order dated 02.08.2007 and amongst other it has been recorded that in the year 2000 when the construction of the basement was in progress the petitioner served with a notice to stop such unauthorized construction. Petitioner in reply thereto submitted a written reply to the effect that no construction of basement is being done. However in the year 2006 on spot inspection it was found that the basement in fact has been constructed. It was further noticed that the petitioner has constructed a basement of 15 X 20 ft. and on Ist, IInd & IIIrd floors, he has constructed new shops. The petitioner despite assuring the authorities to submit the compounding map has not done so. The petitioner filed a Revision, against the order of Appeal, under Section 41 of the U.P. Urban Planning & Development Act, 1973, before the State Government and it was stated that the house in question has been purchased by the petitioner on 10.11.1986 by registered sale deed and that the house because of lack of maintenance was in dilapidated condition (Atyadhik Jarjar) and as such required extensive repair. After taking possession the petitioner has got the repairing work done for which no prior permission under Section 14/15 of the Development Act, is required. It was further stated in paragraph 6 that the petitioner made an attempt to explain to the authorities after receipt of the notice that no new construction are being made. The District Magistrate has instructed that the petitioner should remove the construction within 15 days as he has failed to submit the compounding map. In paragraph 9 of the Appeal that refers to the show cause notice for stopping construction of the basement of the year 2000 and that in the year 2006 that the construction of the basement was found complete during inspection by officers of the Development Authority, as also the raised unauthorized construction on Ist, IInd & IIIrd floors. The petitioner contended in his Appeal that the extent of construction made do not answer of Sampurna Niram Vikas and that the authorities have not segregated the old constructions from the reconstructed portion, therefore, the petitioner could not submit the compounding map. The State Government by means of the impugned order dated 12.02.2009 has rejected the revision filed by the petitioner after recording that the petitioner himself had made an application for submission of the compounding map which he did not do. The State Government has, therefore, permitted the petitioner to submit a map for compounding of the portion so compoundable within 15 days failing which the Development Authority will demolish the unauthorized constructions. Counsel for the petitioner contends that the State Government should have clarified as to which part of the construction was not compoundable and which was compoundable. He, therefore, challenges the impugned order. It is also contended that the constructions which are alleged to be authorized are old construction and, therefore, entire proceedings are vitiated. In the Supplementary Affidavit filed today before this Court by the Development Authority, the application of the petitioner for submitting the compounding map before the Development Authority has been brought on record. Petitioner does not dispute the correctness of the letter so enclosed. I have heard learned counsel for the petitioner and the learned Standing Counsel. From the records of the present writ petition it is apparently clear that one of the findings recorded against the writ petitioner is that in the year 2000 he was served with a show cause notice requiring the petitioner to stop the unauthorised construction of the basement and to submit his explanation. In the relevant year the petitioner submitted a reply in writing to the effect that no such construction is being made. However on spot inspection in the year 2006 the basement was found to be constructed and it is in this background that such construction of the basement has been held to be without prior permission from the Development authority and, therefore, unauthorized. Similarly findings have been recorded that the petitioner has raised construction of shops on the three floors, the petitioner had admittedly made an application for compounding of the same however for reasons best known to him he did not act upon the assurance. The stand before this Court that since the authorities have not demarcated the area which can be compounded, no such map could be filed. The other plea so raised does not appeal to the Court. It is for the petitioner to enquire from the Development Authority as to which area is compoundable and, thereafter, submit his application for compounding in accordance with law. This Court under Article 226 of the Constitution of India sees little or no justification to interfere with order passed by the Development Authority in view of the findings of fact recorded. However this order will not prejudice the rights of the petitioner to submit the compounding map or to act upon the order passed by the State Government strictly in accordance with law, within one month from today. With the aforesaid observations, the writ petition is dismissed.