Gaursons India Ltd. vs State of U.P. and Others

This petition seeks the quashing of the order dated 3 January 2015, passed by the Vice Chairman of the Ghaziabad Development Authority, Ghaziabad1 and for a direction upon the respondent authority not to interfere in the running of the Banquet Hall by the petitioner in the premises in dispute. By this order dated 3 January 2015 the Vice Chairman of the Development Authority exercising powers under Section 28-A of the Uttar Pradesh Urban Planning and Development Act, 19732 has directed for sealing of the Banquet Hall.

It is stated that the petitioner acquired Plot No. 1 admeasuring 1161.72 sq. meters and Plot No. 2 admeasuring 1061.75 sq. meters situated at Chandra Nagar in an auction held by the Development Authority and in terms of the allotment letter dated 30 March 2000 possession of the plots was given to the petitioner on 22 September 2000. The petitioner submitted a site plan in respect to Plot Nos. 1 and 2 and a common site plan was approved by the Development Authority by sanction letter dated 4 October 2000. Subsequently, sale deeds were executed by the Development Authority for these two plots in favour of the petitioner on 18 December 2000. The petitioner claims to have established a Banquet Hall on the two plots in 2003, and according to the petitioner the Banquet Hall has been running since then after the grant of completion certificate by the Development Authority on 30 July 2003. The Development Authority, however, passed the order dated 3 January 2015 for sealing the premises under Section 28-A of the Act. The order recites that the said Banquet Hall was being run without the permission of the Development Authority and though a notice dated 15 January 2011 was earlier issued to the petitioner under sections 26/27/28 of the Act and a notice under section 28-A dated 9 April 2013 was also issued to the petitioner to file a reply as to why the premises should not be sealed but no satisfactory explanation was offered by the petitioner. It is for this reason that Plot No. 1 was directed to be sealed.

Learned counsel for the petitioner has submitted that the Banquet Hall was being run on the basis of a sanctioned plan and that in the absence of the necessary condition for issuance of a notice under Section 28-A of the Act that a notice under section 27 or 28 of the Act must have been previously issued, the order deserves to be set aside. In this connection learned counsel for the petitioner has placed before the Court various provisions of the Act to which we shall refer to at the appropriate stage.

Sri Mahendra Pratap, learned counsel appearing for the Development Authority has, however, placed reliance upon the averments made in the Counter Affidavit, particularly to the averments made in paragraphs 4 and 5 and has submitted that a show room and car parking for the show room was sanctioned for Plot No. 1 and, therefore, the petitioner could not have operated the Banquet Hall. It is his contention that the Banquet Hall was being run without any sanction/permission of the Development Authority and, therefore, the Development Authority was justified in passing the order under Section 28-A of the Act for sealing the premises. Learned counsel for the Development Authority also submitted that the petitioner has a statutory alternative remedy of filing an appeal to the Chairman of the Development Authority under Section 28-A(4) of the Act and so the petition should not be entertained.

We have considered the submissions advanced by the learned counsel for the parties.

We shall first examine the contention of the learned counsel for the petitioner about the jurisdiction of the Development Authority to pass order under Section 28-A of the Act without the pre-requisite condition being satisfied because the answer to this would determine the preliminary objection raised by the learned counsel for the Development Authority that the Court should decline to entertain this petition as the petitioner has a statutory alternative remedy of filing an appeal under sub-section (4) of Section 28-A of the Act. The contention of learned counsel for the petitioner, we must notice at this stage, is that the petitioner should not be asked to avail the alternative remedy as the impugned order is without jurisdiction.

The submission of learned counsel for the petitioner is that it would lawful for the Vice-Chairman of the Development Authority to, at any time before or after making an order for the removal or discontinuance of any development under Section 27 or Section 28, make an order under Section 28-A of the Act for the sealing of such development in a development area for carrying out the provisions of this Act. To appreciate this contention, it would be appropriate at this stage to reproduce the provisions of section 28-A as also Sections 27 and 28 of the Act which are as follows-

Order of demolition of building.-

(1) Where any development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, in relation to the development area, then, without prejudice to the provisions of Section 26, the Vice-Chairman or any officer of the Authority empowered by him in that behalf may make an order directing that such development shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance the development has been commenced or is being carried out or has been completed, within such period not being less than fifteen days and more than forty days from the date on which a copy of the order of removal, with a brief statement of the reasons thereof, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, the Vice-Chairman or such officer may remove or cause to be removed the development, and the expenses of such removal as certified by the Vice-Chairman or such officer shall be recoverable from the owner or the person at whose instance the development was commenced or was being carried out or completed as arrears of land revenue and no suit shall lie in the Civil Court for recovery of such expenses:

Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made.

(2) Any person aggrieved by an order under subsection (1) may appeal to the Chairman against that order within thirty days from the date thereof and the Chairman may after hearing the parties to the appeal either allow or dismiss the appeal or may reverse or vary any part of the order.

(3) The Chairman may stay the execution of an order against which an appeal has been filed before it under sub-section (2).

(4) The decision of the Chairman on the appeal and, subject only to such decision, the order under subsection (1), shall be final and shall not be questioned in any Court.

(5) The provisions of this section shall be in addition to, and not in or derogation of, any other provision relating to demolition of building contained in any other law for the time being in force.

28 Power to stop development;-

(1) Where any development in a development area has been commenced or continued in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, then, without prejudice to the provisions of Sections 26 and 27, the Vice Chairman of the Authority or any Officer of the Authority empowered by him in that behalf may make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly.

(2) Where such development is not discontinued in pursuance of the order under sub-section (1), the Vice-Chairman or the said Officer of the Authority may require any Police Officer to remove the person by whom the development has been commenced and all his assistants and workmen from the place of development within such time as may be specified in the requisition, and such Police Officer shall comply with the requisition accordingly.

(3) After the requisition under sub-section (2) has been complied with, the Vice-Chairman of the Authority may depute by a written order a Police Officer or an officer or employee of the Authority to watch the place in order to ensure that the development is not continued.

(4) Any person failing to comply with an order under sub-section (1) shall be punishable with fine which may extend to two hundred rupees for every day during which the non-compliance continues after the service of the order.

(5) No compensation shall be claimable by any person for any damage which he may sustain in consequence of the removal of any development under Section 27 or the discontinuance of the development under this section.

(6) The provisions of this section shall be in addition to and not in derogation of, any other provision relating to stoppage of building operations contained in any other law for the time being in force.

28-A. Power to seal unauthorised development:-

(1). It shall be lawful for the Vice-Chairman or an officer empowered by him in this behalf, as the case may be, at any time before or after making an order for the removal or discontinuance of any development under Section 27 or Section 28 to make any order directing the sealing of such development in a development area in such manner as may be prescribed for the purposes of carrying out the provisions of this Act.

(2) Where any development has been sealed, the Vice-Chairman or the officer empowered by him in this behalf, as the case may be, may, for purpose of removing or discontinuing such development order the seal be removed.

(3) No person shall remove such seal except under an order made under sub-section (2) by the Vice-Chairman, or the officer empowered by him in this behalf.

(4) Any person aggrieved by an order made under sub-section (1) or sub-section (2) may appeal to the Chairman against that order within thirty days from the date thereof and the Chairman may after hearing the parties to the appeal, either allow or dismiss the appeal.

(5) The decision of the Chairman shall be final."

A bare perusal of Section 28-A of the Act would indicate that the Vice-Chairman of the Development Authority can at any time, before or after making an order for the removal or discontinuance of any development under Section 27 or Section 28, make any order directing the sealing of such development in a development area. This clearly indicates that if any order is to be passed under Section 28-A of the Act, it is imperative that proceedings under Section 27 or 28 of the Act should have been initiated and it is only in that event that an order can be made under Section 28-A of the Act either before or after making an order under Section 27 or 28 of the Act. Section 27 of the Act deals with order of demolition of building. It provides that where any development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan, then without prejudice to the provisions of Section 26 of the Act, the Vice Chairman may make an order directing that such development shall be removed by demolition or otherwise. Section 28 of the Act deals with the power to stop development. It provides that if any development in a development has been commenced or continued in contravention of the master plan or zonal development plan or without the permission, approval or sanction then without prejudice to the provisions of Sections 26 and 27, the Vice Chairman of the Development Authority may make an order requiring the development to be discontinued.

It is in the light of the aforesaid provisions that the factual position is required to be examined.

A perusal of the order dated 3 January 2015 issued under Section 28-A of the Act shows that reference has been made to the earlier notice dated 15 July 2011 bearing No. 19/Aa.Bhu.U./Zone-4/11. This notice dated 15 January 2011 has been annexed with the Counter Affidavit. It had been issued under Section 26(2) of the Act and not under sections 27 or 28 of the Act. It requires appearance of the party on 1 February 2011 for submitting a reply to the notice. The endorsement dated 30 January 2011 made in the notice is that the person has refused to accept the notice. Subsequently, another notice dated 1 February 2011 was issued again under Section 28-A(1) of the Act requiring the petitioner to submit a reply within three days. In the counter affidavit the respondent has also annexed the order dated 9 April 2013 issued by the Development Authority under Section 28-A of the Act for sealing the premises.

It is, therefore, apparent that the Development Authority had not issued any notice under sections 27 or 28 of the Act. Section 26(2) of the Act which is referred to in the notice dated 15 January 2011 is with regard to imposition of penalty. It provides that any person who uses any land or building in contravention of the provisions of section 16 or in contravention of the terms and conditions prescribed by Regulations under the proviso to that section shall be punishable with fine which may extend to twenty five thousand rupees and in case of a continuing offence with a further fine which may extend to one thousand two hundred and fifty rupees for every day during which such offence continues after conviction for the first commission of the offence.

As noticed above, the pre-requisite condition for passing an order under section 28-A of the Act is that a notice under sections 27 or 28 of the Act should have been issued earlier. In the present case the Development Authority did not issue any notice under sections 27 or 28 of the Act. The order dated 3 January 2015 refers to a notice dated 15 January 2011 but this notice, as noticed above, was issued under section 26(2) of the Act. The order dated 3 January 2015 is, therefore, without jurisdiction and deserves to be set aside for this reason alone. It is in these circumstances that the plea of alternative remedy being available to the petitioner needs to be examined. As the order has been found to be without jurisdiction, we do not consider it appropriate to relegate the petitioner to the alternative remedy of filing an appeal before the Chairman of the Development Authority under section 28-A(4) of the Act.

We make it clear that we have not examined the other issues that have been raised by the learned counsel for the petitioner that the Banquet Hall is being run in accordance with law.

Thus, for the reasons stated above, the order dated 3 January 2015 passed by the Development Authority under Section 28-A of the Act deserves to be set aside and is set aside. The Development Authority shall remove the seal from the premises forthwith. The writ petition is, accordingly, allowed.

1Development Authority 2Act