- (1.) RAVI S. Dhavan, J. This writ petition is about constitutions made unauthorisedly and the scope of condoning the unauthorised structures by an exercise known as compounding. The issue plainly is on what is the concept, in urban planning, of condoning an unauthorised construction on the payment of a penalty and at what stage an unauthorised construction falls within the realm of an illegal act, the condonation of which the law does not permit under any circumstances.
(2.) THE facts on record in this case are: In Allahabad, the north sector of it, at the crossing of Beli Road and Batuk Krishna Banerjee Road, is a property which originally was owned by Lt. General D. W. Chakrovorti. It was purchased subsequently by the late Kedar Nath Tiwari, who became its owner. THE municipal number of the property is 2-A, Beli Road. Kedar Nath Tiwari died leaving the property in the hands, of his heirs, namely, Smt. Bimala Devi, his widow and Shri Nirmal Chandra Tiwari, his son. During the pendency of the present writ petition, Nirmal Chandra Tiwari, the petitioners No. 2, died. His heirs were permitted to be brought on record. The facts which become issues between the petitioners, the Allahabad Development Authority and the State of Uttar Pradesh, was an aspect on which there is no issue. The petitioners admit that their predecessor-in-interest, the late Kedar Nath Tiwari, had submitted a plan for constructing a lodging house for students, regard being had to the circumstances, that the property was near the Allahabad University and that were easing out a shortage for housing students. In the petition they admit when they submit that before the construction started, on the advice of the contractor, with a view to make the ultimate finished building a paying proposition, i. e. , profitable return on the capital, deviations were made from the original plan, as sanctioned by the Allahabad Development Authority. It is admitted that the building as it stands completed now has a market and flats for rent. The contention is that a lot of money has been spent in constructing the building and people have been inducted into the building as tenants, students in the lodging part of it and shopkeepers in the market part of it. The writ petition also accepts that while the constructions were deviated from the original plan, the petitioners received a notice from the Allahabad Development Authority cautioning the petitioners to desist from the construction beyond the plan as was sanctioned. At one stage, it is accepted in the petition that as the petitioners had continued to construct, the police had arrived requiring the petitioners to stop the construction. The only explanation given in the writ petition is that the building, at that time when the police arrived, was almost complete in the shape as it exists today. The notice intimated the predecessor- in- interest of the petitioners that unauthorised constructions were and are being made and further constructions be stopped. This notice was under Section 28 of the U. P. Urban Planning and Development Act, 1973. The petitioners also mentioned in the writ petition that they gave an assurance to the local administration that the construction would be stopped. It is admitted today at the time of hearing of the writ petition also that the constructions did proceed despite the notice to stop it and the building has been completed to the finish.
(3.) ULTIMATELY, the petitioners contend that they appeared before the Mukhya Nagar Abhiyanta (The Chief City Engineer) of the Allahabad Development Authority and made a request that all the constructions which have been made by deviating from the sanctioned plan be compounded. Of the accepted petition that the sanctioned plan was violated and deviated and the constructions were completed, the record bears this out blantantly. Thus, it is contended that a request for revised compounding was submitted for being considered but ultimately the Allahabad Development Authority did not accept the deviations from the original plan and the Administrator of the Nagar Mahapalika, Allahabad (City Corporation, Allahabad) passed an order on 29 March, 1979, that the illegal constructions should be demolished. It is contended that this order by which the revised plan showing the illegal constructions were not accepted was passed behind the back of the owner of the back of the owner of the property, i. e. late Kedar Nath Tiwari. Against this order by which demolition of the unauthorised construction had been ordered, an appeal was filed under Section 28 (1) of the Act, aforesaid. This was Appeal No. 8 of 1975; Kedar Nath Tiwari v. Secretary, Allahabad Development Authority Allahabad. The appeal lay before the Chairman, Allahabad Development Authority i. e. . the Commissioner, Allahabad Division Allahabad. On the appeal, the appellate authority on 5 May 1980, passed the following order: "appeal No. 8/1975 Kedar Nath v. Allahabad Development Authority ORDEr This is an appeal filed by Kedar Nath under Section 27 (2) of the Urban Planning and Development Act, 1973 against the order dated 30-6-1979 passed by the Chief Engineer Allahabad Development Authority for demolition of unauthorised construction of shops erected at 2a, Beliroad. I have heard the learned counsel for the appellant and perused the records of the case. The contention of the appellant is that the plan of the construction in dispute was previously sanctioned by Allahabad Development Authority but in actual construction some change has been done with regard to the site of the construction. It is stated that an application for compounding of the case had been filed but the same was wrongly rejected. It is alleged that in front of the said construction, other buildings have also been constructed which are in commercial use, such as Vijay Bank a laundry shop and sweetmeat shop. It is argued on behalf of the Allahabad Development Authority that previously sanctioned plan was for the extension of the existing residential buildings but the construction of shops which have been held to be unauthorised are not in the nature of the extension of the residential house but it a separate house away from the residential house and is being used for commercial purposes. The contention of the appellant, that the construction is meant for the use as lodge for the students is not correct as some of the shops have already been leased out and are in actual use as shops. Section 16 of the Urban Planning and Development Act prohibits any development against the proposal of the Master Plan. Although it is admitted that in front of the disputed construction, commercial activity like bank, laundry and sweetmeat shops are continuing in other buildings but all these are old buildings in which non conformity in use could continue unless specifically prohibited by individual. It is also evident from the perusal of the plan of the unauthorised construction for the required set back for commercial purposes has not been left and the shops have been constructed on the road without leaving any vacant area. It is also clear that the appellant did not stop the construction work despite notice given to him under Section 26 of the Act and completed construction work on first floor also. Such constructions are not fit for compounding as they are not only against the proposal of Master plan but in fact would give impetus to such unauthorised constructions by other persons. In view of the facts discussed above, I find no force in appeal which is hereby dismissed. 5-5-1980 Sd/- J. N. Pradhan Commissioner, Allahabad Division, Chairman, Allahabad Development Authority Allahabad The Appellate Authority, i. e. , the Commissioner, Allahabad Division, Allahabad , was of the view that the petitioner had committed an illegality in making constructions without permission and in any case under the law the construction could not be compounded. The appeal was dismissed. The petitioners felt and were advised that the order of the Commissioner, Allahabad Division Allahabad, is worth a challenge and, thus, they filed a revision before the State Government under Section 41 (3) of the Act, aforesaid. The revision was numbered as 39 of 1981. The State Government considered the revision of the petitioners and declined to interfere with the order of the appellate authority. Relevant portion of the decision of the State Government rendered by the Special Secretary, Urban Development, dated 29 March, 1985 is as below: "uttar Pradesh Shashan Avas Anubhag-3 Sri Kedarnath Tiwari v. Uttar Pradesh Government No. 39 Revision/81 Dt. 29-3-1985. This revision has been filed by Sri K. N. Tiwari, r/o 2, Beli Road, Allahabad, against the order dated 5-3- 1980 of the Chairman, Allahabad Development Authority, Allahabad. Sri K. N. Tiwari got a map sanctioned from the Allahabad Development Authority for making residential constructions in the campus of H. No. 2a, Beli Road/10 Batuk Krishna, Banerji Road,. At the time of making constructions, he constructed 10 shops changing the sanctioned plan. In this connection the local engineer of the Development Authority reported on 21-2-1981 about the unauthorised constructions. On this basis a show cause notice under Section 27 (1) of the U. P. Urban Planning and Development Act, 1973 was issued directing to stop further constructions. On 26-3-1979, the date of hearing, the revisionist appeared in the Development Authority and accepted the unauthorised constructions. He gave an application for compounding. Since the disputed constructions were commercial, and were against the land use proposed in the master plan, the Development Authority did not agree. Orders were passed for demolition of the unauthorised constructions and the party was sent notice to demolish the construction. Against this order the opposite party filed an appeal on 16 July 1979 before the Chairman, Allahabad Development Authority. The Chairman, Development Authority, after complete hearing and perusing the file and the documents filed by the opposite party, dismissed the appeal on 5-5-1980 and vacated the stay order. Against this order Sri Tiwari has come in revision before the Government. The revisionist has filed the revision running into 35 pages. The main ground taken in the revision is that he had filed the application for compounding with a view to have the maximum gain and the constructions were raised with the advice of the contractor. He was hopeful that these constructions would be compounded. He was raising a lodge for the residence of the students and simultaneously he raised shops in which Rs. 80,000/- was spent. He made an application for compounding but no order was passed thereon but later on he received a notice for demolition of the construction. He has also stated that opposite his house shops have been raised and a bank is located there. If a commercial activity can be done in that house, he cannot be discriminated. He has further stated that at the time when the notice for demolition was given, the State was ruled by the Janata Party and many persons were against him. He has also stated that he did not receive any notice under Section 27. His further contention was that oval plan has not yet been made in the master plan and so the building should not be demolished. He said that Sections 8 and 10 are against the Constitution and sought it to be declared as ultra vires, he has further said that the order regarding demolition relates to ground floor constructions and not the upper floor. If the constructions of ground floor are demolished, the constructions of upper floor will automatically fall. Beside this several other contentions have been raised which do not have any direct bearing on the case. In this connection the report obtained from the Development Authority has been seen. In this the Development Authority has denied the objections and pleas of the opposite party. In the report of the Development Authority it has been stated that the revisionist was ordered to stop the constructions, but he did not stop the constructions and violated the law. So far as the master plan relates, it is in vouge in Allahabad and, thus, the contention of the revisionist has no force. The Development Authority has termed the contentions of the revisionist as not acceptable and baseless. They have further stated that reasonable opportunity for hearing was given to him but he continued the unauthorised constructions. This is also the contention of the Development Authority that the plea of compounding at other places by the revisionist is not correct. Each case was decided on their merits and demerits. The Chairman, Development Authority, has found in his order that the constructions in the name of a lodge are not right, but shops are being raised which is violative of Section 16 of the U. P. Urban Planning and Development Act and, the land use under the master plan. About the commercial shops in the building opposite his house, it was said that the building was very old and prior to the master plan. The Chairman has further said that the revisionist continued the constructions even after receiving the notice and such constructions did not justify the compounding. I have thoroughly studied the complete file and heard the counsel and their contentions for both the parties. In the master plan, the area in question has been shown as residential. In residential area permission for commercial cannot be given. Whatever letters etc. , available on record clearly show that the revisionist continuously raised the constructions and the order which he was given for stopping the constructions, was not complied with. The land use under master plan cannot be changed by the Chairman or the Vice Chairman. The main problem is the increasing tendency to raise unauthorised constructions. If this is not checked, the master plan will have no use. Others will find support to violate the valid legal order. In such conditions the order of the Secretary, Development Authority, is perfectly just. Therefore, this revision is dismissed. Sd/- M. M. Verma Special Secretary" (Translated from Hindi);