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R.K. Mittal & Ors vs State Of U.P. & Ors on 5 December, 2011
The Societies Registration Act, 1860
Shri Munshi Ram & Anr vs Union Of India & Ors on 10 August, 2000
K. Ramadas Shenoy vs The Chief Officers, Town ... on 9 August, 1974
Ram Awatar Agarwal And Ors. vs Corporation Of Calcutta And Ors. on 20 August, 1996

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Allahabad High Court
Vasundhara Vyapar Mandal vs U.P. Avas Evam Vikas Parishad And ... on 5 August, 2004
Equivalent citations: 2005 (1) AWC 727, (2004) 3 UPLBEC 2770
Author: M Katju
Bench: M Katju, U Pandey


1. This writ petition has been filed for a mandamus restraining the respondents U.P. Avas Evam Vikas Parishad, their servants, agents and/or assignees from demolishing the constructions of members of the petitioner's Society or non-conforming use of their houses belonging to the members of the petitioner. The petitioner has also prayed for a writ of certiorari to quash the order dated 23.1.2004 issued by the Awas Ayukt, U.P. Awas and Vikas Parishad (vide Anncxurc-19 to the petition).

2. Heard learned Counsel for the parties.

3. The petitioner is a Society registered under the Societies Registration Act. It was founded with the object of promoting the cause of the traders doing their business in Vasundhara Housing Complex, Ghaziabad, and to carry out other activities.

4. In a resolution of the Society held on 8.2.2004 it was resolved that if there was a litigation with the Society the judgment would bind all the members. The present petition is being preferred on behalf of the members of the Society. It is alleged that the respondents arc threatening to demolish the constructions which they have made in the residential houses as such constructions do not conform to the land use prevalent in the area.

5. In other words the stand of the respondents is that the area in question has been earmarked in the master plan for residential purpose but it is being used for commercial activities.

6. It is alleged that the constructions of members of the petitioner arc being used for residential purpose. However, it is alleged in Para 11 that with the view to improve their financial resources these members have constructed small shops on the ground floor and carry on their business on those shops.

7. In Para 12 it is alleged that in all the shops necessary articles of daily use or vocations necessary for making life more meaningful and convenient arc being carried out. Business of sale of grocery, vegetables, utensils, barber shop, etc. are being carried out in the aforesaid shops.

8. It is alleged that the so-called conversion of the land user made by the members of the petitioner's Society cannot be said to be in breach or infraction of the provisions of the master plan.

9. It is alleged in Para 19 of the petition that the master plan entitles the petitioner to have shops called convenience shops which arc not big industrial or commercial establishments. True copy of the relevant extract of the master plan is Annexurc-II to the petition. It is alleged that the respondents have framed a scheme of compounding of illegal constructions (vide Annexure-III to the petition).

10. The members of the petitioner's Society applied for compounding of their constructions even though they claimed that it was not in violation of the master plan. Before compounding Respondent No. 2 published a notice in Hindi newspaper Dainik Jagran inviting objections (vide Annexure-IV to the petition). However, no objection was received to the proposed compounding.

11. In Para 26 of the petition it is alleged that on 4.10.2000 the respondent Parishad conveyed to the President of the petitioner's Society that only 13 applications for compounding have been allowed and 38 other applications have been rejected (vide Annexure-V to the petition). It is alleged that the said order is a non-speaking order. When the petitioners protested to Respondent No. 2 they are informed that they can approach the Appellate Authority constituted by the Awas Ayukt (vide Anncxurc-VI).

12. The members of the petitioner's Society whose applications for compounding were rejected have gone up in appeals, and their appeals are pending. However, in the meantime the respondents are threatening to demolish the constructions of members of the petitioner's Society. Hence the Society made a representation to the convenor of the Appellate Authority for expeditious disposal of their appeals (vide Anncxure-VII).

13. In the mean time the Respondent No. 2 issued a notice dated 12.2.2002 asking the members of the petitioner's Society to show cause as to why their constructions be not demolished and why penalty Under Section 73 of the Adhiniyam be not imposed (vide Annexure-IX to the petition). The Society through its letter dated 21.2.2002 protested that since their appeals arc pending the impugned action would be unjust, unfair and arbitrary (vide Annexure-X to the petition).

14. On 19.10.2002 the members of the petitioner's Society were informed that in case of any defect in the matter of compounding they may contact the Architect and Town Convenor Unit-VI, Vasundhara, Ghaziabad or Respondent No. 2 (vide Anncxurc-XI to the petition).

15. In the mean time the respondents again formulated a further scheme for compounding valid between August, 2002 and October, 2002 which was published in the newspapers vide Annexure-XII to the petition.

16. The members of the petitioner's Society requested that their applications under the old scheme be treated as under the new scheme and be disposed off accordingly (vide Anncxure-XIII to the writ petition).

17. Subsequently a news item was published in the Hindi newspaper Nav Bharat Times dated 4.10.2003. In this newspaper it was given out that all the constructions which have been raised contrary to the prevalent land use would be razed to the ground. Against this the petitioner again made representations (vide Anncxures-XIV and XV to the petition).

18. On 5.2.2004 the Respondent No. 2 asked the members of the petitioner's Society to demolish the constructions raised by them. True copies of the notices are Annexures-XVI, XVI-A and XVII to the petition. The respondents have relied on the directions of this Court dated 20.1.2004 passed in Writ Petition No. 2435 (MB) of 2001, Nishadganj Residents Welfare Society v. Lucknow Nagar Nigam, Lucknow and Ors. The respondents are also relying on the Division Bench decision of this Court in R.K. Mittal and Ors. v. Sate of U.P., (2002) 1 UPLBEC 444. True copy of the said judgment is Anncxurc-XVIII to the writ petition.

19. Now the Awas Ayukt has issued a general direction dated 23.1.2004 stating that in view of High Court order dated 20,1.2004 no compounding shall be done and all applications for compounding shall be rejected (vide Anncxurc-XIX to the petition).

20. A counter-affidavit has been filed and we have perused the same.

21. In Para 2 it is stated that Vasundhara Scheme of the U.P. Avas Evam Vikas Parishad at Ghaziabad was a purely residential scheme wherein no commercial activity or trading is permitted except for the commercial establishments specially provided to cater the day-to-day needs of the residents of the scheme.

22. The layout of the scheme contains provision for schools, community buildings, parks, fields, open spaces, commercial complexes etc. apart from providing land for constructions of houses and arrangement for roads,, drainages and water supply.

23. The Vasundhara Scheme was prepared by an expert body of qualified Engineers of the Parishad under the supervision and guidance of the Chief Architect and Planner of the Parishad. The lay out so prepared was in accordance with the prescribed norms and conditions of the Parishad.

24. The lay out of the scheme provides for the development of the scheme into 19 sectors and each sector has been sufficiently provided with open spaces, community buildings, parks, space for schools, commercial complexes for business purposes, roads etc.

25. In Para 8 of the counter-affidavit it is stated that the Parishad as per its lay out has made sufficient provision in each sector for ultra commercial activity convenience shops by providing space for commercial complexes. In each commercial complex a number of shops have been allotted by the Parishad, and even plots have been provided for raising commercial constructions so as to permit business activities to satisfy the daily needs of the residents. The details are given in Para 8 of the counter-affidavit.

26. The allottees were given possession of the allotted premises and they have given their personal affidavits to the Parishad that they shall use the property only for the purpose allotted i.e. residential, and they shall not undertake any commercial activity therein. True copy of one of such affidavits is Annexure- CA-1.

27. However, it appears that a large number of allottees of residential properties in the scheme including members of the petitioner's Society illegally without the permission of the Parishad started using the property for commercial purposes un-authorizcdly. They also made unauthorized construction without the approval of the Parishad for carrying on their business from their residential properties.

28. In Para 13 it is alleged that on account of the above unauthorized activity carried on by the allottees, the other residents of the scheme faced inconvenience. It disturbed the entire layout of the scheme and created traffic problems. The Parishad had conducted a survey in which it was noticed that residents of the scheme have complained about the unauthorized commercial activities carried on from the residential properties and have stated that on account of such illegal activities they are facing great hardship, inconvenience, traffic jams, parking problem, etc., and their safety, security and privacy have been jeopardized. More than 200 residents who participated in the survey were of the unanimous opinion that commercial activity should not be permitted in the residential scheme.

29. The impugned order was issued by the Avas Ayukt on the basis of the complaints and the survey conducted, and keeping in mind the directives of the High Court so as to restore the residential nature of the scheme.

30. It is alleged that conversion of residential use to commercial use is change of land use which could not be legally permitted.

31. In Para 22 of the counter-affidavit it is stated that the Parishad has made due and adequate arrangement in the scheme for carrying on business activities of selling vegetables, groceries and other items of daily use in each sector. Hence the members of the petitioner's Society who want to carry on such business activity can do so from the commercial complexes earmarked for such purpose, and not from other places.

32. In Para 23 of the counter-affidavit it is stated that only certain constructions which do not disturb the layout of the scheme can be compounded Under Section 81 of the Act provided the relevant criteria prescribed for compounding is fulfilled. However, there cannot be compounding so as to permit commercial activity in the area earmarked for residential purpose.

33. In Para 25 it is alleged that the shops constructed by the members of the petitioner's Society in the residential area are a constant source of nuisance to the residents of the scheme and have disturbed the peace and privacy of the residents, apart from regular traffic and parking problems. All the residents during the survey have unanimously requested that such commercial activity be stopped. Some photographs of the shops constructed by the members of the petitioner's Society in their houses is Annexure-CA-2.

34. We have perused these photographs and we find that commercial activities on a large scale are being carried on in the residential area.

35. In Para 27 of the counter-affidavit it is stated that a scheme for compounding was valid for a particular period in the year 1999. The said scheme was subject to fulfilment of certain requirements. The members of the petitioner's Society had not applied for any compounding under the scheme. Moreover, the compounding was in respect of unauthorized construction which in no way changes the land use.

36. In Para 28 of the counter-affidavit it is stated that the Parishad had considered each and every application for compounding, and only those applications which were within the parameters of compounding were allowed and the rest were rejected. No illegality was committed by the Parishad in passing such orders. The order refusing compounding to some of the applicants became final and binding, and hence such persons cannot complain about the rejection of their compounding applications at this late stage. Moreover, no compounding can be done to permit change of land use. The order rejecting compounding applications of 28 members of the petitioner's Society are filed collectively as Annexure CA-3.

37. It is alleged that such 28 members represented against the rejection of the compounding applications, but their representations were rejected on 23.1.2004. Thereafter such persons were given show cause notice on 12.2.2002 Under Section 73 of the Adhiniyam by the competent authority.

38. The petitioner's Society filed a reply in response to the aforesaid notice, but the same was not found satisfactory.

39. On the facts of the case we find no merit in this petition. A Division Bench of this Court in R.K. Mittal and Ors. v. State of U.P. and Ors., (2002) 1 UPLBEC 444, has held that commercial activities cannot be allowed in a residential area.

40. In Munshi Ram v. Union of India, (2000) 7 SCC 22, the Supreme Court has observed (in paragraph 9):

"The continued unauthorized user would give the paramount lessor the right to re-enter after cancellation of the lease deed. As already noticed, DDA is insisting on stoppage of misuser. The misuser is contrary to the terms of the lease. DDA cannot be directed to permit continued misuser contrary to the terms of the lease on the ground that the zonal development plan of the area has not been framed."

41. In the above case the petitioners had a residential lease, which was being used for commercial purpose and hence proceedings were initiated for unauthorized user. The present case is hence similar to the above case decided by the Supreme Court.

42. in M.I. Builders v. Radhey Shyam Sahu, (1999) 6 SCC 464, the Supreme Court has observed that unauthorized construction should be ordered to be demolished, even if the builder had spent a considerable amount.

43. The Court observed (in paragraph 73) :

"The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions had held that no consideration should be shown to the builder or any other person whose construction is unauthorized. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the respective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out, Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and settled legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots."

44. In R.A. Agrawal v. Corporation of Calcutta, (1999) 6 SCC 532, the Supreme Court directed demolition of a multi-storcyed building, which had been constructed in violation of the building rules. The Supreme Court also granted police protection for carry out the compliance order.

45. In K.R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177, the Udipi Municipality had permitted construction of a Cinema House in a residential area. This grant of permission was challenged in the Supreme Court, which held that a public authority has no power to contravene the bye-laws made by that authority (vide paragraph 27). It was further held by the Supreme Court (in paragraphs 28 and 29) that illegal commercial use by constructing a Cinema house invades the right of the residents.

46. Thus in the aforesaid decisions it has been clearly laid down that the municipal rules and regulations have to be strictly followed otherwise there will be chaos. If the rules are permitted to be violated, it means that no rule need be followed and the rule of law will be thrown to the winds. If the rules arc not strictly enforced it will send a wrong signal that the rules and restriction in regard to the user of property exist only on paper and are not to be taken seriously. Such an attitude may lead to chaotic conditions and disruption of the rule of law.

47. Sri Ravi Kant learned Senior Counsel for the petitioner submitted that even under the master plan some commercial activities are permitted in residential areas.

48. We have perused the relevant extract of the master plan which is Anncxurc-II to the writ petition. Under the said master plan certain convenience shops arc permitted in residential areas. The term convenience shops have not been defined, but obviously it means shops where items of daily use e.g. bread, milk, vegetables, fruits, etc. may be available to the residents in the area.

49. However, as stated in para 8 of the counter-affidavit, the Vasundhara Scheme has already provided for convenience shops in certain places in the residential scheme. Some of the shops have been built by the Parishad, while certain vacant plots have been allotted for raising consmcrcial constructions to permit business activities to Satisfy the daily needs of the residents. Details have been given in para 8 of the counter-affidavit. It follows that no other commercial activities can be permitted in any other place other than those earmarked in the Vasundhara Scheme. It is not the petitioner's case that its members arc carrying on commercial activities at the places earmarked for this purpose in the Vasundhara Scheme.

50. In fact a perusal of Anncxure CA-2, which are the photographs of the various shops and commercial establishments, shows that the entire residential Vasundhara Scheme has been disrupted by such shops and commercial establishments which have been set up by the members of the petitioner's Society. This is clearly illegal as held in the decisions referred to above. Hence, we find no infirmity in the impugned order dated 23.1.2004.

51. We are also of the opinion that there can be no compounding which permits change of the land user. Compounding may be possible provided it satisfies the relevant prescribed criteria to regularize the construction of additional residential room or storey in an existing residential house, but not by changing the land use.

52. For example, if a single storey residential house has been built after getting the map sanctioned by the development authority, and if thereafter the first flood (also for residential purpose) is built on top of it without any sanction then compounding can be done in respect of this second floor (provided it is also for residential purpose) provided the relevant prescribed criteria are satisfied. However, there is no question of compounding of construction for commercial purpose in an area earmarked for residential purpose. Change of land use cannot be compounded, otherwise the whole scheme will be disrupted.

53. In view of the above, there is no force in this petition and it is dismissed.