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TMI Blog2011 (12) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... er Plan of the New Okhla Industrial Development Area (for short, the 'Development Area') is the basic question that falls for consideration of this Court in this bunch of appeals. These appeals demonstrate some of the instances of widespread violation of statutory provisions and somewhat arbitrary exercise of power by the Development Authority. Lack of adoption of uniform application of law has resulted in large number of cases of violation of law all over the State of Uttar Pradesh going unnoticed. The time has come for the Development Authorities to change their style of functioning and act vigilantly and uniformly, that too, strictly in accordance with law, keeping in view the larger public interest. Introductory Facts 3. This judgment shall dispose of the above referred four civil appeals and the applications for intervention therein. Out of the four appeals, in Civil Appeal No. 6962 of 2005 and Civil Appeal arising out of SLP (C) No. 24029 of 2005, the lease deed in favour of the parties had been cancelled by the Development Authority while in other two appeals, Civil Appeal No. 6963 of 2005 and Civil Appeal arising out of SLP (C) No. 9150 of 2007, after giving notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in that behalf in writing and in a substantial and workman like manner, a residential building only with all necessary, sewers, drains and other appurtenances according to the Directions issued or Regulations made in respect of buildings, drains, latrines and connection with sewer. xxx (h) That the lessee shall use the demised premises only for the purpose of constructing a building for residential purpose of customary home occupation or residential cum medical and surgical clinic or dispensary or professional office and for no other purpose without the consent of the Lessor and subject to such terms & conditions as Lessor may impose and will not do or suffer to be done on demised premises or any part thereof, any act or thing which may be or grow to be a nuisance, damage, annoyance, or inconvenience to the Lessor or the owners, occupiers of other premises in the neighbourhood. 5. The Transfer Deed executed by the original lessee in favour of the Appellants also contained similar conditions and in addition thereto provided that the conditions of the lease deed shall be binding upon the Appellants. The relevant clauses of the Transfer Deed read as under: 10. That the Transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of user, the Development Authority rejected the objections and required the misuse to be stopped and the violation of the building byelaws to be removed within four months. A part of the said order reads as follows: The terms and conditions of lease deed and transfer deed of plot clearly states that allotted plot shall be used exclusively for residential purposes. The Petitioner changed the land use of plot without intimating to the Authority and did not bother to seek any clarification or obtain permission from the Authority for such change. It is a well known fact that this Authority does not permit commercial activity in the residential plots. This is a classic case of violation of law by the most educated enlightened class of the Country. This class in Noida has tried to change not only the character of Noida but have for self interest destroyed the peace of the Neighbours. It is also possible that the then Bank staff also colluded in the matter and did not bother to see the conditions contained in the lease deed and did not even try to approach the Authority for clarification. In view of the above stated facts and after listening to the Petitioner, it is ordered that repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of the public notice dated 30th March, 2000 indicating that there was proposal to grant permission for mixed use consulting clinics, bank branch and guest houses on 18 A.M. wide roads on the conditions stated therein. These conditions also included the provision that fees payable on grant of permission for mixed use of land would be 30 per cent of existing residential rate, on per square meter area of plot, on yearly basis. To this proposal, public opinion was invited and it was stated that objections/suggestions in this regard may be filed in writing in the office of the Additional Chief Executive Officer of the Development Authority. Even hearing was to be granted. In the affidavit filed on behalf of the Respondent-Development Authority on 8th October, 2002, it has been specifically averred that 21 banks were functioning in residential sector in the Development Area under private arrangements with the lessees of the concerned plots and these banks have not obtained any permission or authorization from the Development Authority. Two banks, namely, Oriental Bank of Commerce, Sector 27, Noida and Vijaya Bank, Sector 19, Noida had obtained such permission for a period of five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant provisions of law. The State of Uttar Pradesh had enacted the law to provide for creation of an Authority for development of certain areas of the State into industrial and urban townships and for matters connected therewith. 'Authority' had been defined under Section 2(b) of the Act to mean the Authority constituted under Section 3 of the Act. Section 3 required the State Government to constitute, for the purposes of the Act, an authority for any industrial Development Area in terms of that Section. Section 6 of the Act related to functions of the Authority while Section 7 mentions the powers of the Authority in respect of transfer of land. In terms of these statutory provisions, the object of the Authority was to secure the planned development of industrial Development Area and the Authority was required to perform certain functions in terms of Section 6(2), which reads as under: (2) Without prejudice to the generality of the objects of the Authority, the Authority shall perform the following functions-- (a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purposes, of this Act; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations for the purposes of proper planning and development of that area. These were called the New Okhla Industrial Development Area (Preparation and Finalization of Plan) Regulations, 1991 (hereafter referred to as 'the Regulations'). Regulation 2 of the Regulations defines various kinds of uses including 'Land Use'. 'Land Use' under Regulation 2(g) means the use of any land or part thereof in the industrial development area for industrial, residential, institutional, commercial, public water bodies, organized recreational open spaces, public and semi-public buildings, agriculture and other like purposes. In contradistinction to the 'Commercial Use', 'Industrial Use' 'Institutional Use' and 'Public Use', the 'Residential Use' has been defined under Regulation 2(1)(k) which reads as under: - (k) 'Residential Use' means the use of any land or building or part thereof for human habitation and such other uses incidental to residential uses. 11. The expression 'Sector' has also been defined in Regulation 2(l) to mean any one of the divisions in which the industrial development area or part thereof ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 and the amendment shall come into operation either on the date of the first publication or on such other date as the Authority may fix. (4) The Authority shall not make during the specified period in which the Plan is to remain effective, such amendment(s) in the Plan which affects important alteration in the character of the Plan and which relates to the extent of the land sue or standards of population density. 12. It is not in dispute before us that the Development Authority had finalized the Master Plan in accordance with the provisions of the Act and the Regulations, which was titled as 'Master Plan, NOIDA, 2001'. This Plan is in force and is binding on all concerned. 13. Besides the above provisions of the Act and the Regulations framed there under by the Development Authority, the Development Authority has also framed building Regulations and directions, which are termed as 'The New Okhla Industrial Development Area Building Regulations and Directions, 2006 (for short 'Regulations 2006)'. These have been primarily framed as byelaws in relation to the constructions, restrictions thereof and type of user. Under Regulation 3.12 (h), a residential bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buildings. This would necessarily imply that the jurisdiction of the Development Authority to permit different user in violation of this statute and the Regulations is not contemplated in law. Contentions 17. On behalf of the Appellants/lessees/users, in the cases before us, it has been contended that the activity of banking or running of clinics is being carried on by them for a long period. Thus, this has been impliedly permitted by the Development Authority. It is also their contention that a public notice had been issued by the Development Authority, permitting mixed user and, thus, the Appellants/lessees/users are bonafidely carrying on activities of running banks/nursing homes/other commercial activities in the residential sectors. Reliance has been placed upon Public Notice dated 30th March, 2000 and also that vide notification dated 4th December, 2010 plots allotted in the developed sector to farmers under a Rehabilitation Scheme had permitted establishment of guest houses, restaurants, banks, professional offices, day care centres etc. vide notification dated 4th December, 2010. 18. It is also the contention of the Appellants that neither the byelaws, rules and Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea, where the subject matter of this case is located, is a residential sector. Thus, it can only be used for the residential purpose. 23. The Learned Counsel appearing for the lessee/transferees had relied upon the judgments of this Court in the cases of Hari Rao (supra) and Dev Brat Sharma (supra). Both these judgments have no application to the present case, on facts or in law. These were cases of eviction under the respective Rent Restriction Acts. In one case, this Court held that putting up of a clinic in a part of the house by a doctor was not change of user, while in the other, where the premises had been rented out for a commercial purpose of selling of leather goods, change of the industry to a garment and cloth business, was not considered as change of user. We are unable to understand as to how the lessees in the present case can derive any benefit from these judgments. In the present case, we have a clear law in force and that law is neither similar in purpose nor linguistically identical to the Rent Restriction Acts of the respective States. The change of user, in the case in hand, has to be seen in light of the Master Plan, the Regulations and the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... method to be adopted by the Development Authority for preparation of the development Plan in accordance with the provisions of the Act. This is where the Regulations come into play. Under Regulations 3 and 4 of the Regulations, the Draft Plan has to be prepared by the Development Authority for development of an industrial area, which will include a sector plan. The meaning of 'residential use' under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to the residential use. The very language of Regulation 2(1)(k) of the Regulations clearly depicts the intent of the framers that the expression 'residential use' is not to be understood in its wider sense, in fact, it would require strict construction because all other uses have been separately defined. The different kinds of uses, therefore, have to be understood only in terms of the explanation or meaning given to them under the Regulations. If unduly wide meaning is given to the expression 'residential use', then it is bound to cause overlap between the other uses. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The power to amend should be exercised only in consonance with the settled norms without going beyond the original power of the Development Authority to make such Plan in accordance with the provisions of the Act. The power to amend cannot be used to frustrate the provisions of the statute. Regulations, being subordinate legislation must fall in line with the principal provisions of the Act and in no way should be detrimental to the provisions and the legislative scheme of the Act. 27. In the case of M.C. Mehta v. Union of India and Ors. (2004) 6 SCC 588 dealing with the question of unauthorized industrial activity in residential area in Delhi, the plea raised for in situ regularization of areas with 70 per cent industrial use was not accepted by this Court, holding that regularization would have adverse impact on the law abiders. This Court also held that the land cannot be permitted to be used contrary to the stipulated user except by amendment of Master Plan, after due consideration of the provisions of the Act and the Rules. Inaction by the Government authorities means permitting the unauthorized use, contrary to law. 28. The authorities while reconsidering such matters are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to the purpose for which power is exercised. The purpose for which the Act was enacted is spelt out from the Preamble itself which provides for establishment of the Authority for development of the city of Bangalore and areas adjacent thereto. To carry out this purpose the development scheme framed by the Improvement Trust was adopted by the Development Authority. Any alteration in this scheme could have been made as provided in Sub-section (4) of Section 19 only if it resulted in improvement in any part of the scheme. As stated earlier a private nursing home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute. 29. The above decision of the Court was given in light of the provisions of Section 19(4) of that Act which empowered the Authority to alter the scheme, where it appeared to the Authority that an improvement could be made in the scheme. In other words, the power given to the Authority has to be construed in strict terms and it cannot be exercised in a manner which will run contrary to the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of revisional jurisdiction under Section 41 of the U.P. Urban Planning and Development Act, 1973 read with Section 12 of the Act on the ground that there were irregularities and violations of Regulations and policies of Noida Authority in allotting the hotel plots to the Appellants. It is submitted that the State Government has such power to cancel the allotment and as a consequence the lease. 32. Reference can also be made to the judgment of this Court in Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors. (1995) 5 SCC 762. In that case, the Plan had provided for a public park and the Delhi Development Authority had taken the decision to establish a nursery school for the benefit of the children of the colony. Rejecting the contention, this Court observed that within the framework of law and the provisions made in the Master Plan, the authorities could only establish a public park and nothing else, as such conversion would amount to misuse of power. 33. All the above judgments clearly show that it is not merely at the discretion of the Development Authority concerned to designate user of a site and then alter the same without following due process of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsistent. It should target those cases in which action is called for and the same be exercised free of arbitrariness. The Development Authority is vested with drastic regulatory powers to investigate, make Regulations, impute fault and even to impose penalties of a grave nature, to an extent of cancelling the lease. The principles of administrative justice squarely apply to such functioning and are subject to judicial review. The Development Authority, therefore, cannot transgress its powers as stipulated in law and act in a discriminatory manner. The Development Authority should always be reluctant to mould the statutory provisions for individual, or even public convenience as this would bring an inbuilt element of arbitrariness into the action of the authorities. Permitting mixed user, where the Master Plan does not so provide, would be glaring example of this kind. 36. In the case of Shabi Construction Company v. City & Industrial Development Corporation and Anr. (1995) 4 SCC 301, this Court held that, prior sanction of the State Government being the sine qua non for a final development Plan, as also for minor modifications thereof, under Sections 31 and 37 of the Maharashtra R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any purpose other than residential. After raising the construction on the plot in question, admittedly, the Appellants have put the property to a different use other than residential. The property was rented out to two different commercial undertakings, i.e., Andhra Bank and a company by the name 'Akariti Infotech'. It is not even the case of the Appellants before us that the Development Authority had granted any specific permission to them to use the property for any purpose other than residential. 42. The Appellants, in fact, have relied upon an agenda note where there was a proposal put forward by the Development Authority to grant permission for nursing home, guest house, lodging house, banks etc. on a 100 metres wide road on such terms and conditions as may be imposed by the Development Authority. This also provided for levying certain additional charges for granting such permission. Based on this proposal, it is stated that a public notice was issued and objections were invited. 43. The matter rested at that. This was not finalized. In other words, no final decision was taken by the Development Authority in consonance with the provisions of the Act to permit such u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unnecessary controversy raised by its proposal. However, once the writ petitions were filed, thereafter, the stand of the Development Authority has been consistent and unambiguous. In the counter affidavit filed in this Court, it has been stated that even in case of grant of permission to the above stated two banks, no extension was granted and in fact show cause notices have been issued to all the banks in the residential sector to wind up their activities and move out of the residential sector. It is the definite case of the Development Authority that banking activity is a commercial activity and therefore, cannot be carried on in the residential sector, more particularly on the plots in question. In regard to Sector 19, a specific averment has been made in the affidavit of the Development Authority that the land use is residential alone and is neither commercial nor mixed. As per the Master Plan, its primary use is 'residential' where plots are planned for residential purpose alone. It is, therefore, abundantly clear from the pleadings on record that commercial activity of any kind in the residential sector is impermissible. These pleadings are in conformity with the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential sectors. 49. Another case which is required to be noticed by us from amongst the number of cases listed, is the case of Chairman and Chief Executive Officer, New Okhla Industrial Development Authority and Anr. v. Mange Ram Sharma and Anr. SLP (C) No. 24029/2005. In this case, according to the Development Authority, the lessee is running a 20 bedded hospital with all modern and diagnostic facilities, admitted by the lessee and his family members in a letter Annexure P-7 to the authorities. In this letter they had claimed that the hospital is being run from the premises in question and had all the modern facilities. However, these facts are not admitted by the lessee who have tried to explain that letter by stating that in a three-storeyed building of 400 square metres, they are carrying on professional activity of medical consultancy only in an area of 28.42 square metres on the ground floor and rest of the premises is being used entirely for residential purposes. It is also denied that any hospital is being run from the premises. According to them, the order dated 15th October, 1994 terminating the lease is contrary to law and they have also submitted an undertaking that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the Appellant, show cause notice dated 29th August, 1992 was issued and thereafter, the order of termination/cancellation of lease had been passed against the Respondents. This order had been set aside by the High Court and the Development Authority has come up in appeal before this Court. 51. In the light of what we have discussed above, even on facts of this case, running of a hospital or even a medical clinic of this dimension cannot be permitted in a residential area. It would be different if a doctor uses permissible part of the premises for clinical purposes i.e. to meet or examine his patients in any portion. For surgery or specific treatments, such patients would have been addressed to proper nursing homes or regular hospitals. Therefore, doctors cannot carry on, in the garb of a medical clinic, a regular medical and surgical activity on a commercial scale. Thus, we find that action of the Development Authority was justifiable. 52. One of the allegations against the Development Authority is that they have acted arbitrarily and discriminatorily in issuance of notices, in passing of orders of cancellation of the lease deed and/or even in imposing other restrictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll and the contention before the Court was that town planning scheme forbade any cinema building at the place asked for and therefore, the resolution of the committee was invalid. This Court accepted the contention and while setting aside the resolution observed that an illegal construction of a cinema building materially affected the right to enjoyment of the property of the persons residing in the residential area and there being unauthorized construction, the Court would intervene and quash the resolution of the Municipality. This view was followed in the case of M.I. Builders v. Radhey Shyam Sahu (1999) 6 SCC 464, wherein this Court even directed demolition of unauthorized constructions. At this stage, we may also refer to the judgment of this Court in the case of Virender Gaur and Ors. v. State of Haryana and Ors. (1995) 2 SCC 577, wherein this Court was concerned with the issue whether Dharmshala should be permitted to be constructed upon the land which was reserved as open space under the plan. This Court, while noticing the impact on environment, right to hygienic environment and protection of the residents, observed as under: 11. It is seen that the open lands, vested in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, convenience of the residents and ecological impact are relevant considerations for the Courts while deciding such an issue. The law imposes an obligation upon the Development Authority to strictly adhere to the plan, Regulations and the provisions of the Act. Thus, it cannot ignore its fundamental duty by doing acts impermissible in law. There is not even an iota of reason stated in the affidavits filed on behalf of the Development Authority as to why the public notice had been issued without amending the relevant provisions that too without following the procedure prescribed under law. The concept of public accountability and performance of public duties in accordance with law and for the larger public good are applicable to statutory bodies as well as to the authorities functioning therein. We find no justification, whatsoever, for the Respondents to act arbitrarily in treating equals who are similarly placed as unequals. There is also no justification for the Development Authority to issue a public notice in the fashion in which it has done. A few officers of the Development Authority cannot collectively act in violation of the law and frustrate the very object and purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be kept in abeyance for a period of two months from today. In the event the misuse is not stopped within a period of two months in terms of this judgment, then besides sealing of the premises, these orders of cancellation shall stand automatically revived and would come into force without further reference to any Court. In the event the misuse is completely stopped in all respects, the orders passed by the authorities shall stand quashed and the property would stand restored to the lessees. 9. These orders shall apply to all cases, where the order of termination of lease has been passed by the Development Authority irrespective of whether the same has been quashed and/or writs of the lessees dismissed by any Court of competent jurisdiction and even if such judgment is in appeal before this Court. 10. The orders in terms of this judgment shall be passed by an officer not below the rank of Commissioner. This order shall be passed after giving an opportunity to the parties of being heard by such officer. This direction shall relate only to the determination of charges, if any, payable by the lessee or occupant for the period when the commercial activity was being carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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