The Lucknow Bench of the Allahabad High Court at Lucknow has stayed the demolitions being carried out in Akbar Nagar-I & II.
A Single Bench of Justice Pankaj Bhatia passed this order while hearing a petition filed by Syed Hamidul Bari and others.
The petition has been filed aggrieved by an order dated 15.12.2023 whereby the appeals preferred by the petitioners under section 27 (2) of the U.P Urban Planning and Development Act, 1973 have been dismissed.
It is essential to note that the appeal was preferred against an order of demolition dated 13.10.2023 passed in exercise of the powers under sections 27(1) of the ‘1973 Act’.
The facts of the case are that the petitioners claim to be in possession of property known as Akbar Nagar – I & II and is situated on different Khasra numbers. The petitioners claim that they have been peacefully enjoying the property for more than forty to fifty years without any interference whatsoever.
In one of the petitions, it is claimed by the petitioner that he has set-up a furniture shop and also built a house on the property in question.
The petitioners were served with a show cause notice, in the case on 26.08.2023 whereby in exercise of the power under section 27(1) of the ‘Act’ the petitioner was called upon to show cause as to how he has constructed the construction situated at Plot Akbar Nagar-I, Faizabad Road, Lucknow over an area spanning 2000 sq ft The constructions were shown on the ground floor as well on the first floor.
It was alleged that the commercial activity was being carried out over the property in question and the property was described as lying in ‘Doob Kshetra’. The petitioner claims to have filed a reply which ultimately led to passing of an order dated 13.10.2023 whereby the demolition order was passed.
In the light of the said letter and after recording its evaluation, an order was passed holding that the occupation was illegal and on a green belt area, which was liable to be demolished.
Aggrieved against the said order, the petitioner preferred an appeal in terms of the mandate of the Section 27(2) of the ‘1973 Act’. As, the respondents were threatening to pass an order of evicting during the pendency of the appeal, some of the petitioners approached the Court by filing petitions wherein the Court disposed off all the writ petitions vide order dated 08.12.2023 by issuing a mandamus to the appellate authority to hear and decide the stay and delay condonation applications and further directions were issued for providing a copy of the said order dated 15.12.2023.
It was also provided that no coercive action shall be taken against the petitioners till 20.12.2023 mainly on the ground that the petitioners therein would get reasonable opportunity to avail their remedies against any order that may be passed against such petitioners.
It is argued that a copy of the order was actually served on the petitioners on 16.12.2023 and instead of deciding the stay application, the appellate authority proceeded to dismiss the appeal itself. The said order is under challenge in the petition.
The submission of the counsel for the petitioners mainly is that the appellate authority has passed the order based upon the materials which were neither supplied nor were ever provided to the petitioners and the petitioners were never permitted to confront the said documents, as such, the order on the face of it, is in violation of the principles of natural justice.
The counsel for the respondents Ratnesh Chandra as well as the Chief Standing Counsel argued that even as per the pleadings, the occupation of the petitioners is over a span of forty to fifty years and thus, the occupation of the petitioner is prima-facie after the enactment of 1973 Act, as such, the authorities rightly took recourse to proceedings under Section 27 of the Act.
It is further argued that the petitioners have not demonstrated any title over the property in question and irrespective of the nature of the land, once the petitioners have not established any title over the property in question, they could not have resisted demolition.
The Court observed that,
In view of the rival contentions raised and recorded hereinabove, what emerges is that the various persons including the petitioners are in occupation of the land without having any title in their favour; with the passage of time, the said persons have continued in possession and in fact, government roads were carved out and other municipal services are being provided; in some cases, even the municipal taxes are being paid. It also appears that a school is being run in the vicinity i.e the entire area known as Akbar Nagar – I & II. This fact has not been denied by either of the parties and also emerges from the orders impugned.
The issue with regard to the occupation being prior to the 1973 Act or thereafter is an issue which although arises but can be decided subsequently. It also emerges that the order has been passed dismissing the appeals on 16.12.2023 and the executions are being carried out within five days of the passing of the orders on appeal filed by the petitioners. It is also an admitted fact that the Lucknow Development Authority has initiated the process of relocating the various persons in terms of their scheme as recorded hereinabove and in fact, a camp has been set up wherein around 70 to 80 people have enrolled and registered themselves for being relocated at other places, in terms of the scheme.
At this stage, it is no doubt true that the petitioners have not been able to demonstrate any prima-facie title in their favour, but have successfully established their possession, even if the said possession is an illegal possession.
At this stage, it is not clear as to what is the tearing hurry in which huge occupations by the relatively poor class of persons are being proposed to be demolished forthwith without even waiting for the scheme of relocating the adversely affected persons being implemented in letter and spirit and also exposing the poorest of the poor to the ensuing harsh winters.
The Court further observed that the rights flowing from Article 21 of the Constitution of India, which includes the right to earn livelihood, is prima-facie affected and it is the bounden duty of the State and its instrumentalities to ensure that Article 21 of the Constitution of India is not violated to give effect to the other obligations of the State which includes the obligation to resettle and which is also being discharged by the Lucknow Development Authority, the Court deemed it appropriate to issue the following directions:
(i). The demolitions being carried out in Akbar Nagar-I & II pursuant to the orders of the demolition and after the dismissal of appeals are stayed forthwith, till the next date of listing. No demolition shall be carried out in the entire area.
(ii). The Lucknow Development Authority shall give reasonable time of four weeks to the inhabitants to apply in terms of the scheme and the inhabitants would be at liberty to apply in terms of the scheme within the reasonable time.
(iii). The Lucknow Development Authority shall thereafter take steps for resettlement of the persons who have applied in terms of the scheme forthwith and obtain vacant physical possession of the present premises in their occupation.
“In view of the urgency and the fact that large scale demolitions are being carried out, which prima-facie also disclose the potential of disturbance of law and order and public order, it is directed that the Standing Counsel and Ratnesh Chandra, counsel for Lucknow Development Authority shall communicate this order to the Vice Chairman and the Chairman of the Lucknow Development Authority and Secretary, Housing and Urban Planning Department, U.P for it being complied”, the order reads.
The Court has fixed the next hearing of the petition on January 22, 2024.