B. L. Yadav. J. - (1.) BY the present petition under Article 226 of the Constitution, the prayer is that by issuing a writ of certiorari, the order dated 28th of February 1983 (Annexure No. 9) may be quashed and by issuing a writ of mandamus, the respondents by restrained from giving effect to the impugned order.
(2.) THE factual matrix of the case is that the petitioner is the owner of a land measuring 13 x 12 yards at Delhi, Bareilly National Highway, near Kilometer No. 209. THE land in dispute was purchased by the petitioner under a registered sale-deed on 15th of March. 1937. THEre were already old constructions when the land was purchased. THE petitioner moved an application for permission to repair certain constructions and to make some new constructions, but the permission was not granted under the provisions of section 6 of the U. P. Road Side Land Control Act, 1945 (for short, the Act) This permission was refused on the ground that the petitioner was not the owner of the land. THE petitioner, thereafter, fired original salt No. 468 of 1980, in the court of Munsif Rampur, Impleading State of U. P. and the Collector Rampur, for the relief of permanent injunction restraining the defendants from interfering with the possession of the petitioner from the land in dispute and restraining them from demolishing the constructions. THE suit was decreed on 4th of May, 1981 (Annexure No. 2). THEreafter, an appeal was filed by the respondents, but that appears to be pending. THEreafter, some proceedings were initiated under section 4 of the U. P. Public premises Eviction of Unauthorised Occupation Act, against the petitioner. The petitioner has made an application dated 17-7-1981 (Annexure No. 3) for permission to repair and to make certain new constructions, but no order was passed on the same, either refusing permission or granting, hence in view of section 6 (6) of the Act, the permission would be deemed to have been granted. The petitioner replied the notice dated 20-7-81 Issued under section 13 of the Act, directing the petitioner that he has raised constructions at 209 Kilometer to the East Side in village Milak without permission of the District Magistrate, hence he has violated the provision of section 5 of the Act and was liable to punishment under section 13 of the Act (Annexure No. 6). The petitioner replied the said notice denying the allegations (Annexure No. 7) and the impugned order thereafter was passed on 28th of February, 1983 (Annexure No. 9) holding that without any permission, the petitioner has raised the constructions hence he was directed to remove the same, otherwise, that would be removed at the expense of the respondents and the petitioner would be liable to pay expenses. The learned counsel for the petitioner urged that the petitioner had made an application for permission but the same was not replied, hence it would be deemed to have been granted and the petitioner has not raised any fresh constructions rather some repair was made on the basis of the deemed permission and the petitioner being the owner was not liable to demolish the constructions and that the order of Munsif dated 4-5-1981 (Annexure 2) shall have an effect of resjudicata, but the respondents 2 and 3 erred in holding otherwise
(3.) THE learned Standing Counsel on the other hand, refuted (he submissions of the learned counsel for the petitioner and submitted that the petitioner's application for permission was, infact, refused as is clear from the observation in the impugned order dated 26-8-80, and hence there was no question of deemed permission to the petitioner and even if there was any order of the Civil Court that would not override the provisions of sections 5 and 13 of the Act, in as much as section 5 has an overriding effect and in case the petitioner's application for permission was rejected; he mast have filed an appeal under section 7 of the Act and there cannot be any estoppel against the statute and the impugned order was correct. Having considered the submissions of the learned counsel for the parties, the points for our determination are as to whether the judgment and order of the civil court dated 11-5-82 (Annexure No. 2) would operate as resjudicata, and whether the petitioner's application for permission would be deemed to have been allowed and next whether under the circumstances of the case, the impugned order was correal.;