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Anokhi Hospitality Pvt. Ltd. v/s State of U.P. & Others

    Writ C. No. 60150 of 2014
    Decided On, 21 November 2014
    At, High Court of Judicature at Allahabad
    By, THE HONOURABLE MR. JUSTICE DINESH MAHESHWARI & THE HONOURABLE MR. JUSTICE YASHWANT VARMA
    For the Appellant: Narayan Das, H.R. Misra, Advocates. For the Respondents: Mahendra Pratap, Rajesh Kumar Singh, Advocate.


Judgment Text
1. The petitioner, having taken the premises in question situated at Windsor Street, Plot No. 5, Vaibhav Khand, Indrapuram, Ghaziabad on rent from four different owners of different portions by way of registered rent agreements and said to be managing a banquet/marriage hall thereat, has preferred this writ petition for being aggrieved of the action of the respondent No. 2-Ghaziabad Development Authority ('the Authority' hereinafter) in issuing the impugned order dated 24.10.2014 and in putting a seal on the premises in question under section 28A of the U.P. Urban Planning and Development Act, 1973.

Put in a nutshell, the grounds of challenge in this writ petition are, inter alia, that the impugned action of the respondent-Authority is illegal and has been taken without serving any show cause notice on the petitioner or the owners of the premises in question. According to the petitioner, there was no justification in adopting the proceedings against it; and infact, there already existed a banquet hall at the premises in question since the year 2011-2012 and the respondent-Authority never raised any objection against the same. The petitioner has also filed with the writ petition, a confirmation sheet as Annexure-3, purportedly carrying the details of various bookings having already been made until the month of April, 2015 for the marriage hall in question; and it is submitted that the petitioner, as also the persons who got the bookings, would suffer serious and irreparable injury, if the premises are not allowed to be used. It is also suggested on behalf of the petitioner that infact, there had been no illegality in the construction as raised nor any illegality in functioning of the marriage hall at the premises in question.

The respondent-Authority has filed a counter-affidavit wherein, inter alia, it is pointed out that an association namely- Windsor Park Residents Welfare Association (RAW) filed a writ petition bearing No. 63538 of 2008 against the alleged illegal acts of promoters/developers as regards the premises in question. The said writ petition was dismissed by this Court on 16.12.2010. A copy of this order dated 16.12.2010 has been placed on record by the petitioner with its rejoinder affidavit, wherefrom it is made out that this Court dismissed the writ petition on the consideration that the petitioner was alleging breach of conditions of allotment and transfer of flats to its members; and the controversy being contractual and factual, could be resolved effectively by a civil suit.

2. It is pointed out by the respondents that RAW has filed SLP No. 13021 of 2011 before the Hon'ble Supreme Court against the aforesaid order dated 16.12.2010 wherein, the Hon'ble Supreme Court passed an interim order on 12.5.2011 in the following terms:

"Issue notice.

Mrs. Reena Singh, Advocate accepts notice on behalf of respondent No. 1.

During the pendency of this Special Leave Petition, the Ghaziabad Development Authority-respondent No. 1 shall not allow any further compounding of the construction made by respondent No. 5."

3. It is further pointed out that RAW moved a contempt petition bearing No. 667 of 2014 wherein the Hon'ble Supreme Court has issued notices to the Vice Chairman of the Authority, as also the Managing Director of the Developer Company fixing 28.11.2014 as the date, while requiring the non-applicants to appear in person. With reference to the contents of the contempt petition (Annexure-CA-2), it is submitted on behalf of the respondent-Authority that the construction of the premises in question, as also its use for marriage hall are of the subject-matter placed before the Hon'ble Supreme Court in the said contempt petition; and particularly, the averments as taken in paragraph 11(c) of the contempt petition before the Hon'ble Supreme Court have been referred (at PP. 21-23 of the counter-affidavit). The prayer as made in the contempt petition, has also been referred. It is also submitted on behalf of the respondent-Authority that a Division Bench of this Court in another writ petition bearing No. 49077 of 2013 has issued directions to the Authority to seal all the buildings/shops carrying on commercial activities in the residential colony by its order dated 19.9.2013 (Annexure-CA-9).

4. With reference to the above, it is submitted that the petitioner claiming the rights only on the basis of rent agreements has no right to question the proceedings adopted in relation to the premises in question. It has also, inter alia, been pointed out that the owners were duly put to notice before such action.

5. Learned Counsel for the petitioner has, however, strenuously argued with reference to the contents of the impugned order dated 22.10.2014, as also with reference to the order passed in Writ Petition No. 65358 of 2008 and the contents of the petitions before the Hon'ble Supreme Court, that use of the premises as marriage hall or construction thereat had not been, and is not, the subject-matter of such litigation; and rather the allegations had only been of some question about finishing work on the existing construction. It is submitted that only with reference to such finishing work, the respondent-Authority is not justified in closing down the premises causing serious loss and agony to the petitioner, as also to other individuals, who had obtained booking for the hall in question being operational since long.

6. The learned Counsel has also attempted to make various other submissions on the merits of the case, which we need not elaborate upon for the reason that having examined the material placed on record in the petition, counter-affidavit and rejoinder affidavit; and more particularly the contents of the contempt petition (No. 467 of 2014) placed on record as Annexure-CA-2, it is difficult for this Court to ignore the submissions of the respondent-Authority that the premises in question, as also the marriage hall in question have been indicated as the offending use/construction. We would not make any further comments for the simple reason that the matter is subjudice before the Hon'ble Supreme Court. The issue as to whether the impugned action of the respondents is not covered within and by the subject-matter of the pending SLP and the contempt petition, if to be commented upon, could only be by the Hon'ble Supreme Court and not by this Court. Prima facie wh

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en it cannot be said that the premises and the construction in question are totally away and apart from the subject-matter of litigation before the Hon'ble Supreme Court, in our view, the only proper course in the present matter is to terminate the proceedings in this writ petition with liberty to the petitioner to make appropriate submissions before the Hon'ble Supreme Court. Accordingly, and in view of the above, the proceedings in this writ petition stand closed and this petition stands disposed of, but with liberty to the petitioner to take recourse to the appropriate proceedings in accordance with law, while making it clear that we have not expressed any opinion on the merits of the case either way.
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