RAM SHANKER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) INSTANT writ petition has been preferred against the impugned order by which the beauty parlour maintained in the petitioner's house established in the year 2003 situate in Vivek Khand, Gomti Nagar, Lucknow has been sealed by the respondents. It has been submitted by the learned counsel for the petitioner that in pursuance to notice dated 12.01.2001 contained in Annexure No.4 to the writ petition the petitioner had applied for compounding as well as permission to establish a beauty parlour at her residence. Learned counsel for the petitioner has invited attention of this Court that a notice was issued for voluntary compounding in pursuance to which Government Order dated 13.6.2001. The Government Order dated 13.6.2001 contains the list of various items relating to daily use wherein, in residential locality the Government has permitted the commercial use to some extent. Item no.14 of the list is with regard to beauty parlour. The submission of the learned counsel for the petitioner is that in response to notice the petitioner had applied for compounding of the beauty parlour and the Lucknow Development Authority( for short 'LDA') vide Annexure No.7 with certain conditions directed the petitioner to deposit Rs.1,92,770/- . The submission is that the petitioner had deposited the amount so demanded by the LDA and also fulfilled the conditions. Again a notice dated 11.3.2003 was served on the petitioner demanding Rs.47,101/-, which too the petitioner deposited. Learned counsel for the petitioner submits that after depositing the entire amount as demanded by the LDA, the petitioner also deposited Rs.600/- with regard to processing of map/manchitra, a copy of which has been filed as Annexure No.8 to the writ petition. It has been submitted by the learned counsel for the petitioner that after completing necessary formalities the petitioner opened beauty parlour in the year 2003. It has been vehemently argued by the learned counsel for the petitioner that in Vivek Khand area of Gomti Nagar, Lucknow, the LDA has permitted to open beauty parlours and several houses have been converted for commercial purposes. The land used for residential locality has been changed for commercial purposes by the LDA. Recently a notice dated 15.1.2009 was served on the petitioner in response to which the petitioner has submitted his reply dated 3.2.2009, a copy of which has been filed as Annexure No.17 to the writ petition but no decision has been communicated by the LDA till date. Sri D.K. Upadhyay, learned Chief Standing Counsel, submits that action has been taken in pursuance to power conferred under Section 16 read with Section 28-A of the U.P. Urban Planning and Development Act, 1973. It has also been submitted that though the petitioner has paid the entire taxes to Nagar Nigam, Lucknow but a fresh bill was prepared on 27.3.2009 imposing taxes by the Nagar Nigam, Lucknow for an amount of Rs.8,00,000/- in odd. It has been specifically pleaded in the writ petition that in spite of payment of entire dues a fresh bill has been prepared. Learned counsel for the petitioner has specifically pleaded in the writ petition that impugned action has been taken malafidely. Though, at this stage we are not taking note of malafides as alleged in the writ petition but prima-facie action taken by the respondents seems to be not fair and violative of statutory provisions. Once the petitioner had submitted his reply as far as back on 3.2.2009, it was incumbent upon the LDA to adjudicate the controversy by communicating its decision to the petitioner so that in the event of fault on his part he could have taken necessary steps in accordance to law or could have taken necessary corrective steps. Without communicating the decision in response to reply submitted by the petitioner, we are of the view that it was not open for the LDA to put a seal on the premises in question sealing the entire house, making the petitioner homeless. Respondents seem to be not justified sealing the entire residential accommodation. At the most only beauty parlour may be sealed in accordance to law. Sri J.N. Mathur, Additional Advocate General, submits that the case may be taken at 2.00 p.m. Put up at 2.00 p.m. today itself. It is expected that by 2.00 p.m, possession of the petitioner shall be restored. 01.04.2009 A.Katiyar Hon'ble Devi Prasad Singh,J. Hon'ble V.D.Chaturvedi,J. In view of order passed today in pre lunch hour the lock of the premises in question has been opened. However, the learned counsel for the petitioner has relied upon the Apex Court judgement reported in 1988 (3) SCC 306 and submits that the Nagar Nigam has decided for payment of additional taxes afresh from a retrospective date, which is not permissible. Learned counsel for the petitioner further submits that the petitioner's family including young daughters were compel to leave the house because of sealing of the premisses. Accordingly the submission is that though the premises has been open by Lucknow Development Authority but petitioner is entitled for damages. So far as Nagar Nigam is concerned we hope and trust that while proceeding with the controversy with regard to payment of house tax they shall keep in mind the law settled by the Hon'ble Supreme court (supra). However, damages can not be awarded exparte without providing opportunity of hearing to the respondents. Accordingly, we admit the petition and frame the following question apart from other issue involved:- Whether in the event of action taken by Lucknow Development Authority or other local bodies or corporation in contravention of statutory provisions or in case a person is suffered because of no fault on his or her fault or because of arbitrary exercise of power by Lucknow Development Authority or Lucknow Nagar Nigam or any other local bodies or authorities, this court while finally deciding the controversy, impose damages for payment to aggrieved party who prefer a writ petition under Article 226 of the Constitution of India? List the present writ petition in the first week of May, 2009. It shall be open to the respondents to file counter affidavit.