Amod Kumar Agrawal and Another vs State of U. P. and Others

The Petitioners have challenged the letter/circular of the District Magistrate, Varanasi dated 12.3.2008 issuing a direction to the Sub-Registrar, Varanasi not to register the sale deed in respect of any property unless no objection certificate is obtained from the Varanasi Development Authority. It appears from the letter/circular of the District Magistrate that the purpose of the circular is to restrict sale of unauthorized consructions.

Counsel for the Petitioners submits that the letter dated 12.3.2008 is wholly arbitrary and against the right of the Petitioners to dispose of property. The insistence of obtaining a no objection from the Development Authority gives into the hands of the officers of the Development Authority an uncontrolled power to create hurdles in the sale of the property. Counsel for the Development Authority submitted that the constructions in question are illegal and a no objection certificate for the purpose of preventing sale of such unauthorized constructions is being required by the letter.

We have perused the impugned order. It purports to have been issued in exercise of powers u/s 14 of the Urban Planning and Development Act, 1973 (hereinafter referred to as the Act). Section 14 of the Act relates to development of land in the development area. Sub-section (2) of Section 14 provides that no development shall be undertaken or carried out or continued in any development area unless such development is in accordance with the plans. Sub-section (3) of Section 14 relates to development of land by any department of State or the Central Government or any local authority. The consequences of raising an unauthorized construction are envisaged in the Act. Such construction can be demolished. But no provision has been brought to our notice whereunder a sale of an unauthorized construction is prohibited. It is difficult to accept the contention of the standing counsel, that the District Magistrate by means of letter or circular can in exercise of power u/s 14 of the Act require a no objection certificate to be obtained from the Development Authority so that unauthorized constructions are not sold. Moreover even it is accepted that a restriction or regulation on the sale of unauthorized construction in a development area is in furtherance of the provisions of Section 14 such restriction or regulation can be done only by Statute and not by letter/circular of the District Magistrate.

If unscrupulous sellers are playing fraud upon gullible buyers by concealing the fact that the constructions are unauthorized and the object is to prevent that the Respondents may find out other methods to prevent it. But the letter/ circular impugned oversteps that objective. If the purpose of requiring a no objection certificate is to create a restriction on transfer of unauthorized constructions in the development area, such restriction cannot be imposed by means of a mere letter/ circular issued by the District Magistrate.

In the result, the writ petition is allowed. The letter of the District Magistrate, Varanasi dated 12.3.2008 is quashed.