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HIGH COURT OF JUDICATURE AT ALLAHABAD
RAJIV JOSHI, J.
Arvind Kumar Mittal - Appellant
Vs.
Bulandshahr Development Authority and Another - Respondent
Second Appeal No. 1358 of 2018
Decided on : 09-05-2019
Uttar Pradesh Urban Planning and Development Act - Suit Barred by Section 27 - Section 27, 37, 52 - The court discussed the provisions of Sections 27, 37, and 52 of the Uttar Pradesh Urban Planning and Development Act, 1973. It highlighted the finality of the decision of the Chairman on appeal and the statutory remedy available to challenge the demolition order. The court emphasized that the civil court is not competent to examine the correctness or illegality of the decision passed by the Chairman, Development Authority under Section 27(1) of the Act, and that the suit is clearly barred by Section 27 of the Act.
Fact of the Case:
The plaintiff filed a suit for permanent injunction to restrain the defendants from demolishing a construction over a land area of 20 square meters. The suit was filed on the ground that the construction was a repair and no new construction was raised, hence no permission was required.
Finding of the Court:
The court found that the suit was barred by Section 27 of the Act as the order of demolition passed by the Vice Chairman was appellable before the Chairman, and the decision of the Chairman on appeal was final. The court held that the civil court is not competent to examine the correctness or illegality of the decision passed by the Chairman, and the suit was clearly barred by Section 27 of the Act.
Issues: The main issue was whether the plaint in the original suit could be rejected under Order 7 Rule 11 (d) on the ground of the suit being barred by Section 27 of the Act.
Ratio Decidendi: The court held that the suit was clearly barred by Section 27 of the Act as the decision of the Chairman on appeal was final, and the civil court was not competent to examine the correctness or illegality of the decision passed by the Chairman.
Final Decision: The appeal was dismissed as it was devoid of merits and the suit was held to be clearly barred by Section 27 of the Act.
RAJIV JOSHI, J.
1. Heard Sri Vijay Prakash Mishra, learned counsel for the appellant and Sri Kuldeept Singh Chauhan, learned counsel for the respondents.
2. The present second appeal under Section 100 C.P.C. has been filed by the plaintiff-appellant impleading the Bulandshahr Development Authority through its Secretary and Prescribed Authority, Building Control System Bulandshahr as a defendant-respondent nos 1 and 2, respectively challenging the order dated 7.9.2018 passed by the Additional District Judge, Court no. 10, Bulandshahr in Civil Appeal No. 37 of 2013 (Arvind Kumar Mittal Vs. Bulandshahr Development Authority & Ors.) whereby the appeal filed by the plaintiff-appellant was dismissed affirming the order dated 30.3.2011 passed by the Civil Judge (Senior Division), Bulandshahr in Original Suit No. 148 of 2011 allowing the application No. 60-ga for rejection of plaint under Order 7 Rule 11 (d) as the suit is barred by Section 27 of Uttar Pradesh Urban Planning and Development Act, 1973 ( for short “ the Act of 1973”).
3. The brief facts giving rise to the present appeal are thus:
4. The plaintiff-appellant filed a suit for permanent injunction before the Civil Judge (Sr. Division) Bulandshahr, restraining the defendants from demolishing the construction over the land of an area of 20 square metre and further for declaring the notice dated 23.10.2010 issued by the Bulandshahr Development Authority as well as demolition order dated 18.11.2010 as null and void.
5. The suit was filed on the ground that the plaintiff-appellant along with one Omprakash and Pradeep Kumar are the owners of the building situated at Mandi Fatehganj, District-Bulanshahr. The ground floor of the said building was being used by them for the business purpose while the first floor for residential purposes. As the building was about 70 years old and was in a dilapidated condition, the plaintiff-appellant got repaired the roof of the ground floor area only but the defendants issued a notice on 23.10.2010 under Section 26-A (4) read with Section 28 (1) of the Act of 1973, directing the plaintiff-appellant to appear and explain as the construction raised by him over 20 square meter was without permission/approval of the Development Authority.
6. Subsequently, the order was passed by the Vice Chairman of the Bulandshahar Development Authority directing the plaintiff-appellant to remove the construction over an area of 20 square meters on the ground floor as well as first floor.
7. It was further stated in the plaint that the plaintiff-appellant has only got repaired the roof and no new construction was raised and therefore, there was no necessity for obtaining any permission. On these grounds, the suit was filed for restraining the defendant-respondents from demolishing the disputed part of the building.
8. During the pendency of the suit, an application 60-ga was filed from the side of the defendant-respondents under Order 7 Rule 11 (d) for rejection of the plaint on the ground of suit being barred by Section 27 of the Act of 1973. The plaintiff filed an objection to the said application. Ultimately the trial court vide order dated 30.3.2011 rejected the plaint under Order 7 Rule 11 (d) of C.P.C. holding the Suit as barred by Section 27 of the Act.
9. Against the order passed by the trial court dated 30.3.2011 rejecting the plaint under Order 7 Rule 11 (d), a revision was filed which was later on converted into a Civil Appeal (registered as Civil Appeal No. 37 of 2013) which was dismissed by the Additional District Judge vide impugned judgment dated 7.9.2018. The order dated 30.3.2011 passed by the trial court rejecting the plaint of the plaintiff under Order 7 Rule 11 (d) as well as judgment and order of the appellate court dated 7.9.2018 are impugned in the present appeal.
10. The only point that arises for determination in this appeal is whether the plaint in Original Suit No. 148 of 2011 could be rejected under Order 7 Rule 11 (d) on the ground of the
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