- (1.) THIS writ petition is directed against the order dated 09.06.2010 (annexure 7 to the writ petition) passed by the Vice -Chairman, Agra Development Authority (respondent no. 1) and a further relief has been prayed for directing the respondents not to interfere in the use and enjoyment by the petitioner over the property described as House No. 1/193/A Bagh Farzana, Agra in Plot no. 519 Sarjepur, Agra.
(2.) THE dispute between the parties started when the petitioner got a building plan sanctioned from the respondent no. 1 on 11.11.2009. The respondent no. 11 claiming to be the power of attorney holder filed a representation on behalf of respondent nos. 2 to 10 on 25.03.2010 before the respondent no. 1 and when it went undecided the respondent no. 2 filed a Writ Petition No. 20343 of 2010 whereby by the order dated 19.04.2010 the respondent no. 1 was directed to decide the representation within two weeks by passing a reasoned order. As consequence of the direction issued by the writ court the impugned order dated 09.06.2010 has been passed by the respondent no. 1.
(3.) ON the basis of the contents of the representation dated 25.03.2010, the objection filed against it and the documentary evidence submitted by the respective parties the respondent no. 1 in the impugned order has recited the facts brought before him which are detailed here under: - 1.Abdul Wahid was the original owner of Plot no. 519 area 4 Bigha 1 Biswa situate in Bagh Farzana, Agra. 2.In the partition of 1947 Abdul Wahid left the property and migrated to Pakistan. 3.Similarly in the partition of 1947 Tulja Ram and Kishan Chand left their properties in Pakistan and migrated to India. 4.In proceedings under the Displaced Persons (Compensation and Rehabilitation) Act 1954 Tulja Ram and Kishan Chand purchased the property by auction for a sum of Rs. 61,000/ - and sale certificate dated 29.07.1961 was issued to them by the Prescribed Authority, Evacuee Property after registering the sale. 5.One Harnath Chaturvedi was a sitting tenant at the time on a portion of Plot no. 519. 6.Harnath Chaturvedi challenged the auction and sale certificate dated 29.07.1961 of Tulja Ram in judicial proceedings which was ultimately decided against him upto to the High Court when his Special Appeal no. 1002 of 1962 (Harnath Chaturvedi Vs Secretary and others) was dismissed on 24.11.1971. 7.Harnath Chaturvedi had taken up proceedings under Section 27 of the Administration of Evacuee Property Act 1950 (Powers of revision of Custodian General) and the Custodian General allowed his revision on 05.11.1969 and remanded the matter. 8.On remand the Additional Custodian by his order dated 02.05.1972 accepted Harnath Chaturvedi as bhumidhar over an area of 2 Bigha 10 Biswa of Plot no. 519. 9.On the basis of the order dated 02.05.1972 the Additional Custodian passed the final order dated 25.02.1972. 10.Harnath Chaturvedi then on the basis of the order dated 25.02.1972 filed an appeal before the Settlement Commissioner praying for cancellation of the sale certificate dated 29.07.1961 issued to Tulja Ram. 11.This appeal was allowed by the Settlement Commissioner on 31.01.1973 and as a consequence there of the Prescribed Authority cancelled the sale certificate dated 29.07.1961 of Tulja Ram. 12.Tulja Ram assailed the order dated 31.01.1973 of the Settlement Commissioner but he did not succeed and his Special Leave to Appeal No. 10468 of 1985 was rejected on 06.05.1994 by the Supreme Court. 13.However when the sale certificate of Tulja Ram dated 29.07.1961 was cancelled on 31.01.1973 Harnath Chaturvedi got the auction in his favour by depositing the Rs. 61,000/ - auction amount and claimed ownership of the Kothi and land total area 1 Bigha 11 Biswa in Plot no. 519. He then applied before the Custodian Evacuee Property U.P. for sale of the Kothi and 1 Bigha 11 Biswa to one G.C. Mittal with whom he had earlier executed an agreement of sale. 14.The Custodian allowed the application of Harnath Chaturvedi on 11.11.1982 and he issued the sale certificate dated 18.11.1982 in favour of G.C. Mittal. 15.Upon issue of the sale certificate dated 18.11.1982 G.C. Mittal executed a sale deed dated 25.02.1984 of the Kothi and land area 1 Bigha 11 Biswa in favour of Bihari Kunj Cooperative Housing Society. 16.When these facts were brought to the notice of the State Government (U.P.), the government sent a representation to Home Ministry, Central Government under Section 54 of the Administration of Evacuee Property Act 1950 (Power of the Central Government to take action with regard to evacuee property) praying for cancellation of the sale certificate and order dated 02.05.1972 of the Additional Custodian issued in favour of Harnath Chaturvedi alleging fraud against him. 17.The Central Government by the order dated 30.09.1985 put a restrain on changing the nature and alienation of the property. 18.Inspite of the restraint order dated 30.09.1985 passed by the Central Government under Section 54 of the Administration of Evacuee Property Act 1950 the property was sold on 16.04.1986 to the Bihari Kunj Cooperative Housing Society by Ajit Kumar Chaturvedi. 19.Harnath Chaturvedi and G.C. Mittal challenged the Central Governments action in Writ Petition no. 9162 of 1987 (Smt. Lalita Chaturvedi and others Vs Union of India and others) and Writ Petition no. 9336 of 1987 (G.C. Mittal and others Vs Union of India and others) assailing the orders dated 21.02.1986 and 19.03.1987. 20.The State of U.P. also filed a Writ Petition no. 16775 of 1985 (State of U.P. Vs Custodian General and others) challenging the order dated 11.11.1982 of the Custodian and sale certificate dated 18.11.1982 issued by the Custodian. 21.All the three writ petitions were decided by the High Court by a common judgement dated 23.04.1998 wherein both the writ petitions of Smt. Lalita Chaturvedi and others and G.C. Mittal and others were dismissed whereas the writ petition of the State of U.P. was allowed and the order dated 11.11.1982 of the Custodian alongwith sale certificate dated 18.11.1982 were set aside. 22.The Bihari Kunj Cooperative Housing Society assailed the High Courts' order dated 23.04.1998 before the Supreme Court in Civil Appeal no. 1795 of 2000 (Bihari Kunj Cooperative Housing Society Vs State of U.P. and others) which civil appeal was dismissed on 25.07.2008 by the Supreme Court. 23.In light of the aforesaid recitation the property in dispute is property of the Central Government as evacuee property. The respondent no. 1 then proceeded to consider the representation of the respondent no. 11 (power of attorney of respondent nos. 2 to 10) and has recorded the following findings: - (a) Ajit Kumar Chaturvedi (petitioner herein) had filed an affidavit dated 18.03.2009 before the respondent no. 1 along with his application for sanction of plan wherein he had averred that he is the owner in possession of an area of 386 square yards and there is no case pending in any court of law regarding it. (b) Vijay Kumar Mittal had filed an affidavit dated 23.08.2007 along with his application for sanction of plan before the respondent no. 1 averring therein that he is owner in possession of Plot no. 519/1 and 519/2 and there is no case pending in any court of law regarding it. (c ) Whereas the fact is that Harnath Chaturvedi's challenge to the sale certificate dated 29.07.1961 failed upto the High Court when his Special Appeal no. 1002 of 1962 was dismissed on 24.11.1971. (d) The Writ Petition no. 9162 of 1987 (Smt. Lalita Chaturvedi and others Vs Union of India and others) and Writ Petition no. 9336 of 1987 (G.C. Mittal and others Vs Union of India and others) were dismissed by the High Court on 23.04.1998. (e) The Writ Petition no. 16775 of 1985 (State of U.P. Vs Custodian General and others) was allowed on 23.04.1998 wherein the orders dated 11.11.1982 and 18.11.1982 were set aside (f) The High Court by its order dated 23.04.1998 had also set aside the sale certificate dated 18.11.1982 (g) These facts indicate that the High Court rejected the claim of Harnath Chaturvedi by the order dated 24.11.1971 yet Harnath Chaturvedi in 1969 had made a representation to the Assistant Custodian that he be given rights of tenure holder which was illegal. (h) The sanction of plan for Property no. 1/193/A/1 in Plot no. 519 issued in favour of Harnath Chaturvedi as contained in ADA File No. 337/BFH/6/09 -10 dated 11.11.2009 is cancelled and the unauthorised constructions made thereupon are liable to be demolished. (I) The sanction of plan for Property no. 1/193 Plot no. 8 in Plot no. 519 issued in favour of Vijay Kumar Mittal as contained in ADA File No. 989/BFH/05/07 -08 dated 13.08.2008 is cancelled and the unauthorised constructions made thereupon are liable to be demolished. Learned counsel for the petitioners Sri P.C. Jain has referred to the aforementioned proceedings in detail and has filed written notes and written brief facts of the case. His submission against the impugned order are three fold. Firstly they are based on the law laid down by this court in the case of Shyam Sunder Agarwal and another Vs District Magistrate, Banda and others, 1992 1 UPLBEC 585to state that the law is settled that disputes relating to title of the property cannot be determined in proceeding for sanction of plan under the U.P. Urban Planning and Development Act, 1973 and that a sanctioned plan can be cancelled only on the grounds as invisaged in Section 15 (9) of the U.P. Urban Planning and Development Act 1973. Secondly that the predecessor -in -interest of the respondent nos. 5 to 10 namely Tulja Ram had no right, title or interest left in the property after his sale deed dated 29.07.1961 was cancelled on 31.01.1973 and his challenge to the cancellation was rejected upto the Supreme Court in SLP No. 10468 of 1985 on 06.05.1994. Thirdly that the petitioner has invested huge sums in re -construction of the building and if it is demolished it would amount to depriving the petitioner of his property in violation of Article 300 -A of the Constitution of India.;