Ashok Bhushan, J. - (1.) HEARD Sri R.N. Singh, Senior Advocate, assisted by the Sri G.K. Singh, Advocate for the petitioners, Sri Ashwani Kumar Mishra, Advocate for respondent Nos. 2, 3 and 4 and learned Standing Counsel
(2.) COUNTER and rejoinder affidavits have been exchanged between parties and with the consent of the parties, the writ petition is being finally disposed of. The petitioners with intent to construct a showroom/ workshop over Plot No. 694 village Andawa Jhunsi, Tehsil Phoolpur, District Allahabad, made an application on 29th December, 2009 for sanction of the building plan before the respondent No. 2. No final decision having been taken by the respondents over the application within 90 days from the date of application, the petitioners treating the plan stood automatically sanctioned, proceeded with the construction work. An order dated 13th August, 2010 was passed by respondent No. 3, Prabhari Adhikari (Bhawan), Allahabad Development Authority, Allahabad, cancelling the application for sanction of the plan. The order further mentioned that the land use of the plot in question being residential (Low Density "R-3'), construction of showroom is permissible under Master Plan 2021 and Zoning Regulations after taking impact fee and the petitioners having been informed by letter dated 13th January, 2009 to give their consent for payment of impact fee, which was not favourably replied, hence in case so desired, the petitioners may submit the building plan again alongwith consent for giving impact fee. The petitioners filed this writ petition praying for following relief : "i. to issue a writ, order or direction in the nature of certiorari quashing the order dated 13th August, 2010 passed by the respondent No. 4 (Annexure-6 to the writ petition). ii. to issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering with the peaceful possession of the petitioner over the plot in question and preventing him from finishing the constructions, which have already been raised over the aforesaid plot. iii. to issue a writ, order or direction in the nature of mandamus directing the respondents to treat the building plan of the petitioner as sanctioned in view of the bye-laws which have been framed by the respondent-Authority under the Act. iv. to issue a writ, order or direction in the nature of mandamus declaring the Zoning Regulation which empowers the respondent-Development Authority to levy impact fees as ultra vires the Act." Sri R.N. Singh, Senior Advocate, learned counsel for the petitioners, challenging the impugned order, made following submissions in support of the writ petition : (I) The application for sanction of building plan having been submitted on 29th December, 2009 and no decision regarding sanction/rejection of the plan having been taken within 90 days, the building plan shall be deemed to be approved in accordance with Bye-law 3.1.3.3. (II) No opportunity was given to the petitioner before rejection of the building plan. (III) According to Section 15(3) of the U.P. Urban Planning and Development Act, 1973, the competent authority to grant, sanction/refuse sanction building plan is the Vice Chairman of the Development Authority. The impugned order dated 13th August, 2010 having been passed by Prabhari Adhikari (Bhawan), respondent No. 4, the order is without jurisdiction.
(3.) SRI Ashwani Kumar Mishra, learned counsel appearing for the Allahabad Development Authority, refuting the submissions of learned counsel for the petitioners, submitted that the application of the petitioners for sanction of the building plan was not in accordance with Master Plan 2021 prepared in accordance with the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the 1973 Act). The petitioners were issued notice dated 13th January, 2010 informing about the deficiencies in plan submitted by them with a direction to submit modified plan so as further steps be taken regarding sanction in that regard. It is stated that the said notice dated 13th January, 2010 was personally delivered to petitioner No. 2, who had personally come in the office on the relevant date alongwith one Sushil Jaiswal introduced by the petitioner No. 2 as Manager of petitioners' company, which letter was duly received by said Sushil Jaiswal, the Manager of the Company. The objections pointed out by letter dated 13th January, 2010 were not removed. The petitioners illegally proceeded with making construction. The notice dated 17th April, 2010 was issued to the petitioners directing to stop the construction work. The notice was also given to the petitioners exercising power under Section 28 of the 1973 Act for stopping the construction, which was being carried out in violation of Sections 14 and 15 of the 1973 Act. The demolition notice was also issued on 17th April, 2010 directing the petitioners to show cause as to why the constructions be not demolished. The officials of the Development Authority made a report for sealing of the premises. The petitioners having not removed the deficiencies pointed out by notice dated 13th January, 2010 the building plan was rejected by order dated 13th August, 2010. It is submitted that instead of replying the notice given on 17th April, 2010 to the petitioners, they have rushed to this Court challenging the order dated 13th August, 2010 praying for declaration that their building plan stood deemed sanctioned. It is submitted that the building plan cannot be said to be deemed sanctioned since the plan submitted was not in accordance with the Master Plan 2021 and the question of deemed approval shall arise only when the plan submitted is in accordance with the Master Plan 2021. He further submitted that notice having been issued to the petitioners on 13th January, 2010 itself, the stand taken by the petitioners denying the receipt of notice and claiming that notices ought to have been served in accordance with Section 43 of the 1973 Act is wholly incorrect. The petitioners' conduct in denying the receipt of the notice on 13th January, 2010 and making unauthorised construction dis-entitle them from any relief in discretionary jurisdiction of this Court. We have considered the submissions of learned counsel for the parties and perused the record.;