SHIV MANGAL SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) This is the plaintiff's second appeal assailing the judgment and decree dated 16.5.2012, passed in Regular Civil Appeal No.138/11 whereby the Additional District Judge, Court No.7, Lucknow, dismissed the aforesaid appeal and the judgment and decree dated 28.5.2011, passed by the Additional Civil Judge, Senior Division, Court No.24, Lucknow dismissed the regular suit no.503/2011 and it is against the aforesaid concurrent judgments that the present second appeal has been preferred.

(2.) This Court by means of order dated 29.8.2012 admitted the above second appeal on the substantial question of law which is being reproduced hereinafter:- "Whether the defendant nos.1 to 7 have any authority to demolish the construction, in the capacity of public servant, without prior notice under U.P.Z.A. & L.R. Act or under any other law for the time being in force, without ascertaining to the knowledge of the plaintiff that the demolished construction was raised on land Khasra No.60 or land Khasra No.61?"

(3.) In order to answer the aforesaid substantial question of law certain facts giving rise to the above second appeal are being noted first. That the plaintiff-appellant instituted regular suit before the Court of Civil Judge, Senior Division, Lucknow registered as R.S. No.503/2001. In the plaint in suit, the plaintiff-appellant had sought the relief for damages mainly on the ground that the plaintiff was the owner in possession of a ''pucca' house constructed over a piece of land measuring 550 square feet, situate in village ''abadi' of village Chak Parawa, Post and Pargana Kakori, Tehsil and District Lucknow. It was stated that the aforesaid ''pucca' house was situate on Khasra Plot No.61 which was demolished arbitrarily and without any notice by the defendants no.4 to 7. It was further pleaded that defendants no.5 to 7 came to the house of the plaintiff on 16.3.2001 at 11:00 AM along with other tehsil officials and police officials along with 10 to 15 labourers and demolished the house of the plaintiff without any order or any authority and also without giving any opportunity to show cause. In Paragraph 6 and 7 it was specifically pleaded that the plaintiff had asked the defendant no.5 for a copy of an order under which the demolition was being undertaken and it was further stated that the plaintiff requested for some time to ascertain regarding the demolition order but no such time was granted nor any order was shown or given and with the help of the police officials and the labour present, the house of the plaintiff was razed to the ground within four to five hours. It was further stated that the plaintiff approached the SDM Lucknow as well as the District Magistrate on 19.3.2001 complaining against the illegal and arbitrary action of defendants no.5 to 7 which bore no fruits. Thereafter, the plaintiff again requested the Commissioner, Lucknow Division on 20.3.2001 and 23.3.2001, however, no action was taken.