Allahabad High Court
Shiv Vatika Basrat Ghar And Another vs State Of U.P. And 4 Others on 24 September, 2019
Bench: Pradeep Kumar Singh Baghel, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved In Chamber Case :- WRIT - C No. - 37797 of 2018 Petitioner :- Shiv Vatika Basrat Ghar And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arpan Srivastava,Sri Anil Bhushan, Sr. Advocate Counsel for Respondent :- C.S.C.,Devi Prasad Mishra Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Pankaj Bhatia,J.
The petitioners have preferred this writ petition for issuance of a writ of Certiorari to quash the order dated 11.10.2018 passed by Allahabad Development Authority (now Prayagraj Development Authority)1.
Briefly stated the facts are; the petitioner no. 1 claims to be the owner of the property - 1, Panna Lal Road, Allahabad. The area of the aforesaid property is more than 10000 square meters. The property is said to be ancestral property and several families are residing in the aforesaid property. The petitioner no. 2 has constructed a Marriage Hall (Banquet Hall) (for short, "marriage hall") in an area about 3975.67 square meters which is a part of the aforesaid property. The petitioner no. 2 runs a Marriage Hall in the name and style of Shiv Vatika and it is using the open space of the property for the said purpose and has raised temporary construction for running the guest house.
The petitioner made an application to the District Magistrate for registration of the marriage hall. On 30.3.2012 the District Magistrate registered the Guest House/ Marriage Hall under the provisions of the Sarais Act, 1867 subject to certain conditions mentioned in the registration certificate. It is stated that since there is temporary construction of tin-shade, therefore, there is no requirement to take any permission from the Development Authority.
The present dispute arose when the Development Authority issued a show cause notice dated 9.1.2015 to the petitioners, wherein it is recorded that the petitioner is running the marriage hall contrary to the provisions of Section 16 of the U.P. Urban Planning and Development Act, 19732. It is further recorded in the show cause notice that on inspection it was found that the said property is earmarked for residential purposes whereas it is being used for commercial purposes which is punishable under Section 26 of the Act, 1973. It is also mentioned in the said notice that earlier on 29.9.2014 a show cause notice was issued to the petitioner but he failed to submit any reply. Thereafter, an order under Section 26 of the Act, 1973 was passed on 20.11.2014 and despite this order the petitioner continued to use the property for commercial purposes. It is further mentioned in the notice that in Public Interest Litigation No. 51055 of 20143 a restrain order has been passed for using the premises for marriage. The petitioner has submitted a reply wherein it is stated that the petitioner is running the marriage hall in an open area in which there is no permanent construction and the approval has also been obtained from the District Magistrate, Allahabad under the Sarais Act, 1867. The petitioner has not brought on the record his reply submitted to the show cause notice. He has brought on record a report submitted by the Lekhpal and the Sub-Divisional Magistrate, Sadar dated 31.1.2015 that the petitioner's marriage hall is not on the land of Chandra Shekhar Azar Park. Both the reports are on the record. The petitioner relying on those reports has averred in the writ petition that from the said report it is clear that marriage hall is not situated within the premises of Chandra Shekhar Azad Park (Company Garden).
The Development Authority again issued a notice on 28.4.2015 that the use of property in question for commercial purposes is contrary to the provisions of the Section 16 of the Act, 1973. It appears that in the meantime the petitioner submitted an application for sanction of the map on 12.1.2015. After examining his proposal, his application was rejected by the Development Authority on the ground that the land is a park only hence it cannot be used for running marriage hall and a direction was also issued that if the petitioner continues to use the property for commercial purposes, it shall be sealed.
It appears that the petitioner continued to use the property for commercial purposes. The Development Authority passed an order on 11.10.2018 under Section 28-A of the Act, 1973 and sealed the premises.
By way of a supplementary affidavit the petitioner has brought on record a list of marriage halls in the city. The said list shows that as many as 190 marriage halls are running in the city. The said fact is unrebutted by the Development Authority.
A counter affidavit has been filed by the Development Authority. The stand taken in the counter affidavit is that the petitioner cannot use any land or building owned by him for a purpose which is not in conformity with the Master Plan prepared by the Development Authority. Under the Master Plan, the land on which the petitioner was running a marriage hall, has been earmarked as park and open space as such its use as a marriage hall is illegal. Insofar as the permission granted to the petitioner under the Sarais Act, 1967, it is stated, does not authorize the petitioner to run the marriage hall in contravention with the provisions of the Act, 1973, Master Plan and the bye-laws framed under it. The Sarais Act, 1867 does not authorize him to change the use of land in development area contrary to its approved Master Plan. The petitioner no. 2 had submitted a compounding map for regularization of the construction raised in the property in question for running the marriage hall in the name of 'Shiv Vatika'. The compounding map submitted by the petitioner was rejected by the Development Authority by its order dated 7.7.2015 on the ground that the said map was contrary to the Master Plan as it is earmarked for park and open space, hence it cannot be used as marriage hall or banquet hall.
It is further averred in the counter affidavit that even temporary construction over the land in question amounts to development in terms of Section 2(e) of the Act, 1973. For any development work to be carried out in the developed area, the permission of the Development Authority under Section 15 of the Act, 1973 is necessary. Since the permission has been rejected by the Development Authority raising temporary construction is illegal and unauthorized.
It is further submitted that the petitioner has submitted a fresh map on 21.8.2017 after rejection of his compounding map on 7.7.2015. The said map has again been rejected by the Development Authority on 22.11.2017. The Sarais Act, 1867 only grants licence to the petitioner to run marriage hall. It does not exempt him from complying with the provisions of the Act, 1973. In view of the said facts it is stated that action under Section 28-A of the Act, 1973 has been taken after furnishing sufficient opportunity to the petitioner.
In regard to the averments made in the writ petition the petitioner is paying Municipal taxes for the property to Nagar Nigam, Allahabad, it is stated that paying the tax to Nagar nigam does not mean that the petitioner has got a commercial map/sanction from the Development Authority.
Learned counsel for the Development Authority has not disputed the list submitted by the petitioner which shows that at present about 200 marriage halls are running in the city. He has produced bye-laws which regulate the banquet hall/ marriage hall. Relevant part of the bye-laws is extracted below:
v/;k; & 16 ^ckjkr ?kj^@ ^mRlo Hkou^ ds fuekZ.k gsrq vis{kk,a 16-1 vuqeU;rk ckjkr ?kj@ ^mRlo Hkou^ ds fuekZ.k dh vuqeU;rk egk;kstuk tksfuax jsxqys'kUl ds vuqlkj gksxhA 16-2 Hkw[k.M dk U;wure 1500 oxZehVj {ks=Qy 16-3 Hkw[k.M dk U;wure 24 ehVj QzUVst 16-4 lMd dh U;wure 24 ehVj fo|eku pkSMkbZ 16-5 Hkw&vkPNknu ¼d½ fufeZr@ fodflr {ks= 30 izfr'kr ¼[k½ u,@ vfodflr {ks= 40 izfr'kr 16-6 ,Q-,-vkj- ¼d½ fufeZr@ fodflr {ks= 1-00 ¼[k½ u,@ fodflr {ks= 1-50 16-7 Hkou dh mapkbZ 30 ehVj ls de pkSMs ekxZ ij fLFkr Hkouksa dh vf/kdre mapkbZ lMd dh fo|eku pkSMkbZ rFkk QzUV lsV & cSd ds ;ksx ds Ms< xquk ls vf/kd ugh gksxh] ijUrq 30 ehVj ,oa mlls vf/kd pkSMs+ ekxkasZ ij fLFkr Hkoukas gsrq ;g izfrcU/k ykxw ugh gksxkA Hkou dh vf/kdre mapkbZ lajf{kr Lekjd@ gSjhVst LFky ls nwjh] ,;jiksVZ Quy tksu rFkk vU; LVsV~;qVjh izfrcU/kksa ls Hkh fu;f+U=r gksxhA 16-8 lSV cSd ^ckjkr ?kj^@ ^mRlo Hkou^ i`Fkdhd`r ¼fMVsPM½ Hkou ds #i es gksxk rFkk Hkw[k.M ds {ks=Qy ds vk/kkj ij U;wure lSV&cSd fuEukuqlkj gksaxs %& Hkw[k.M dk {ks=Qy ¼oxZehVj½ U;wure lSV & cSd ¼ehVj½ vxz i`"B Ikk'oZ & 1 Ikk'oZ & 2 2000 rd 12.0 4.5 4.5 3.0 2000 ls vf/kd
12. 5.0 5.0 5.0 16-9 ikfdZax ekud izR;sd 100 oxZehVj ry {ks=Qy ij 2-0 ^lkeku dkj LFky^ dh O;oLFkk Hkw[k.M ds vUnj djuh gksxhA ikfdZax dh x.kuk Hkw[k.M esa vf/kdre vuqeU; ry {ks=Qy ij dh tk,xhA 16-10 cslesUV cslesUV dh vuqeU;rk Hkou mifof/k ds izLrj& 3-9 ds vuqlkj gksxhA 16-11 vuqKk dh izfdz;k ubZ ;kstukvkas@ vuqeksfnr gksus okys ys& vkmV IykUl esa ckjkr ?kj@ mRlo Hkou gsrq fu/kkZfjr ekudksa ds vuqlkj igys gh visf{kr la[;k esa Hkw[k.Mks dk fpUghdj.k fd;k tk,xk vkSj ckjkr ?kj ds fuekZ.k dh vuqKk dsoy bl iz;kstu gsrq fpfUgr@ vkjf{kr Hkw[k.Mksa ij gh nh tk,xhA fo|eku fodflr dkyksfu;kas@{ks=ksa esa vuqKk iznku djus gsrq izLrkfor LFky ds lEcU/k esa U;wure ,d ekg dh le;kof/k iznku djrs gq, turk ls vkifRr@ lq>ko mfpr ek/;e ls vkefU=r fd, tk,axs ,oa muds fuLrkj.k ds mijkUr ekufp= Lohd`[email protected] dh dk;Zokgh dh tk,xh rFkk ckjkr ?kj@ mRlo Hkou vuqeU; fd, tkus ij vkosnd ls tksfuax jsxqys'kUl ds vk/kkj ij izHkko 'kqYd Hkh fy;k tk,xkA As can be seen, one of the requirements for marriage hall is the parking area in 1/3 of the total covered area of marriage hall. We asked the learned counsel for the Development Authority that whether all the marriage halls at present are running in conformity with the bye-laws framed by the Development Authority. We have pointedly asked him to name at least few marriage halls who have parking in terms of requirement under the bye-laws. It is a common experience in this city that during wedding seasons, in the evening there is traffic clogging on all the roads where these Barat Bhars are running.
Learned counsel for the Development Authority has very fairly conceded that there is no marriage hall which has its parking in terms of the bye-laws.
Learned counsel for the petitioner has laid emphasis on the provisions of the Sarais Act, 1867 to buttress his submission that since the petitioner's marriage hall is registered under the Act, 1867 the Development Authority does not have any power to take action against the marriage hall.
Since we are not adverting to various issues raised by the petitioners at this stage, we are referring only relevant provisions of the Act, 1867. The definition of 'Sarai' is as under:
"2. Interpretation-clause.--In this Act, unless there be something repugnant in the subject or context,--
"Sarai".
"Sarai" means any building used for the shelter and accommodation of travellers, and includes, in any case in which only part of a building is used as a sarai, the part so used of such building. It also includes a purao so far as the provisions of this Act are applicable thereto.
"Keeper of a Sarai".
"Keeper of a Sarai" includes the owner and any person having or acting in the care or management thereof.
4. Registers of Sarais to be kept.--The Magistrate of the District shall keep a register in which shall be entered by such Magistrate or such other person as he shall appoint in this behalf, the names and residences of the keepers of all Sarais within his jurisdiction, and the situation of every such Sarai. No charge shall be made for making any such entry.
7. Duties of keepers of Sarais.--The keeper of a Sarai shall be bound---
(1) when any person in such Sarai is ill of any infectious or contagious disease, or dies of such disease, to give immediate notice thereof to the nearest police-station;
(2) at all times when required by any Magistrate or any other person duly authorized by the Magistrate of the District in this behalf, to give him free access to the Sarai and allow him to inspect the same or any part thereof;
(3) to thoroughly cleanse the rooms and verandahs, and drains of the Sarai and the wells, tanks, or other sources from which water is obtained for the persons or animals using it to the satisfaction of and so often as shall be required by, the Magistrate of the District, or such person as he shall appoint in this behalf;
(4) to remove all noxious vegetation on or near the Sarai, and all trees and branches of tree capable of affording to thieves means of entering or leaving the Sarai;
(5) to keep the gates, walls, fences, roofs and drains of the Sarai in repair;
(6) to provide such number of watchmen as may, in the opinion of the Magistrate of the District, subject to such rules as the State Government may prescribe in this behalf, be necessary for the safety and protection of persons and animals or vehicles lodging in, halting at or placed in the Sarai; and (7) to exhibit a list of charges for the use of the sarai at such place and in such form and languages as the Magistrate of the District shall from time to time direct."
Section 9 of the Act, 1867 provides that if Sarai is not used according to the provisions of the Act or become in a filthy or unwholesome state and if two or more of the neighbours complaint the District Magistrate regarding the nuisance at sarai the District Magistrate after the enquiry may cause notice in writing to the owner of the sarai for taking appropriate remedial actions. Section-14 provides penalty for infringing the Act or regulations. It shall be treated as an offence and the owner of the sarai will be liable for conviction or penalty. Section 15 provides conviction for third offence to disqualify a person from keeping sarai.
We are amazed that in spite of the fact that none of the Marriage Halls are running in conformity with the bye-laws, the Development Authority has turned blind eyes to gross violation of law and has left the city at the mercy of the owners of marriage halls who have caused immense inconvenience to the residents of this city.
As discussed above, the Development Authority itself has admitted that haphazard running of a large number of marriage halls in the city is causing serious inconvenience to the residents and clogging of traffic. Learned counsel for the Development Authority has produced before us two different sets of proposed bye-laws one is titled "Proposed Bye-laws" and the second "Temporarily Proposed Bye-laws".
The salient feature of the proposed bye-laws are that to avoid the noise pollution, the directions of the Supreme Court in the case of George of Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare Association and others4, dated 30.8.2000 shall be complied with. The minimum area for sanctioning the map for construction of marriage halls shall be 1500 square meters. The minimum frontage shall be 18 meters. Marriage hall shall be at minimum 18 meters wide road. The covered area 30% in the developed area and in the new/ undeveloped area 40%, FAR in the developed area 1.00, undeveloped 1.50, 2.0 equal car space on every 100 square meter covered area. The salient features of the byelaws read as under:
Proposed Byelaws nwjLFk {ks=ksa ¼uxj fuxe dh lhek ls ckgj½ esa ^ckjkr ?kj*@^mRlo Hkou* ds fuekZ.k@lapkyu gsrq vis{kk,a& ckjkr ?kj ds lapkyu gsrq cM+s Hkw[k.M dh vis{kk gksrh gS ,oa okgu ikfdZx] lM+d tke bR;kfn dh leL;k Hkh mRiUu gksrh gSA uxj ds vUnj fLFkr ckjkr ?kjksa ls izk;% tu&lkekU; dks ,oa ckjkr ?kj ds fudV ds fuokfl;ksa dks vlqfo/kk Hkh gksrh gSA mDr ds n`f"Vxr ckjkr ?kj lapkyu dh vuqefr uxj fuxe lhek {ks= ds ckgj fLFkr {ks=ksa esa iznku fd;k tk;A mDr nwjLFk {ks=ksa esa Hkwfe dh miyC/krk Hkh vf/kd gS ,oa lM+dks ij tke bR;kfn dh leL;k Hkh de gSA vr,o ckjkr ?kjksa@mRlo Hkouksa dh vuqefr uxj fuxe lhek {ks= ds ckgj fLFkr {ks=ksa eas fuEufyf[kr izfrcU/kksa ds lkFk iznku fd;k tk;& 1- vuqeU;rk ^ckjkr ?kj*@mRlo Hkou* ds fuekZ.k dh vuqeU;rk egk;kstuk tksfuax jsxqys'kUl ds vuqlkj gksxhA 2- ek0 loksZPp U;k;ky; }kjk ppZ vkQ xkWM ¼Qqy xklfiy½ cuke ds-ds-vkj- esftfLVd dkyksuh osyQs;j ,'kksfl,'ku esa ikfjr vkns'k fnuakd 30-08-2000 esa Li"V fd;k tk pqdk gS fd /ouh iznw"k.k ds ekudksa dk vuqikyu fd;k tkuk ck/;dkjh gS ,oa jk=h 10%00 cts ls ysdj izkr% 06%00 cts rd ykmMLihdj dk iz;ksx iw.kZr% oftZr gSA vr,o ckjkr ?kj lapkydkas dks iznw"k.k fu;a=.k foHkkx }kjk fu/kkZfjr /ouh iznw"k.k ds ekudksa dk vfuok;Z :i ls vuqikyu djuk gksxk ,oa jk=h ds 10%00 cts ls izkr% 06%00 cts rd ykmMLihdj@Mh-ts- bR;kfn dk mi;ksx iw.kZr% oftZr jgsxkA 3- ckjkr ?kj ds lapkydksa dks cqfdax djkus okys O;fDr;ksa ls cqfdax ls iwoZ bl vk'k; dk 'kiFk i= izkIr djuk gksxk fd ckjkr ?kj esa 100 eh0 vf/kd nwj ls ckjkr ugha vk;sxh ,oa ckjkr fo|eku lM+d dh pkSM+kbZ ds vf/kdre ,d pkSFkkbZ Hkkx esa O;ofLFkr :i ls fudkyh tk;sxh] ftlls fd tu&lkekU; dks vkokxeu esa dksbZ vlqfo/kk u gks] bldk mYya?ku djus dh fLFkfr esa cqfdax djkus okys O;fDr ,oa vU; lEcfU/kr O;fDr;ksa ds fo:) oS/kkfud dk;Zokgh dh tk;sxhA 4- Hkw[k.M dk {ks=Qy U;wure 1500 oxZehVj 5- Hkw[k.M dk QzUVst U;wure 18 ehVj 6- lM+d dh fo|eku U;wure 18 ehVj pkSM+kbZ 7- Hkw&vkPNknu ¼d½ fufeZr@fodflr {ks= 30 izfr'kr ¼[k½ u,@vfodflr {ks= 40 izfr'kr 8- ,Q-,-vkj- ¼d½ fufeZr@fodflr {ks= 1-00 ¼[k½ u,@vfodflr {ks= 1-50 9- Hkou dh Å¡pkbZ 30 ehVj ls de pkSM+s ekxZ ij fLFkr Hkouksa dh vf/kdre Å¡pkbZ lM+d dh fo|eku pkSM+kbZ rFkk QzUV lsV&cSd ds ;ksx ds Ms<+ xquk ls vf/kd ugh gksxh] ijUrq 30 ehVj ,oa mlls vf/kd pkSM+s ekxksZa ij fLFkr Hkouksa gsrq ;g izfrcU/k ykxw ugha gksxkA Hkou dh vf/kdre Å¡pkbZ lajf{kr Lekjd@gSfjVst LFky ls nwjh] ,;jiksVZ Quy tksu rFkk vU; LVsV~;qVjh izfrcU/kksa ls Hkh fu;fU=r gksxhA 10- lSV cSd ^ckjkr ?kj*@^mRlo Hkou* i`Fkdhd`r ¼fMVsPM½ Hkou ds :i esa gksxk rFkk Hkw[k.M ds {ks=Qy ds vk/kkj ij U;wure lSV&cSd fu;ekuqlkj gksxsa%& Hkw[k.M dk {ks=Qy ¼oxZehVj½ U;wure lSV&cSd ¼ehVj½ vxz i`"B ik'oZ&1 ik'oZ&2 2000 rd 12.0 4.5 4.5 3.0 2000 ls vf/kd 12.0 5.0 5.0 5.0 11- ikfdZax ekud izR;sd 100 oxZehVj ry {ks=Qy ij 2-0 ^leku dkj LFky* dh O;oLFkk Hkw[k.M ds vUnj djuh gksxh A ikfdZax dh x.kuk Hkw[k.M esa vf/kdre vuqeU; ry {ks=Qy ij dh tk,xhA mDr ds vfrfjDr ;g Hkh izfrcU/k gksxk fd Hkw[k.M ds lEiw.kZ {ks=Qy dk U;wure ,d&pkSFkkbZ Hkkx okgu ikfdZax gsrq vkjf{kr jgsxk] ftl ij dksbZ vU; xfrfof/k vuqeU; ugha gksxh 12- cslesaV cslesUV dh vuqekU;rk Hkou mifof/k ds izLrj&3-9 ds vuqlkj gksxhA 13- vuqKk dh izfdz;k ubZ ;kstukvksa@ vuqeksfnr gksus okys ys&vkmV IykUl esa ckjkr ?kj@ mRlo Hkou gsrq fu/kkZfjr ekudksa ds vuqlkj igys gh visf{kr la[;k esa Hkw[k.Mkas dk fpUghdj.k fd;k tk,xk vkSj ckjkr ?kj ds fuekZ.k dh vuqKk dsoy bl iz;kstu gsrq fpfUgr@vkjf{kr Hkw[k.Mksa ij gh nh tk,xhA fo|eku fodflr dkyksfu;ksa@{ks=ksa esa vuqKk iznku djus gsrq izLrkfor LFky ds lEcU/k esa U;wure ,d ekg dh le;kfof/k iznku djrs gq, turk ls vkifRr@lq>ko mfpr ek/;e ls vkefU=r fd;s tka,xs ,oa muds fuLrkj.k ds mijkUr ekufp= Lohd`[email protected] dh dk;Zokgh dh tk,xh rFkk ckjkr ?kj@mRlo Hkou vuqeU; fd;s tkus ij vkosnd ls tksfuax jsxqys'kUl ds vk/kkj ij izHkko 'kqYd Hkh fy;k tk,xkA Temporarily Proposed Byelaws mifof/k ykxw gksus dh frfFk ls vLFkk;h :i ls ek= nks o"kksZa dh vof/k rd uxj fuxe dh lhekUrxZr ^ckjkr ?kj*@^mRlo Hkou* ds fuekZ.k@lapkyu gsrq vis{kk,a& ckjkr ?kj ds lapkyu gsrq cM+s Hkw[k.M dh vis{kk gksrh gS ,oa okgu ikfdaZx] lM+d tke bR;kfn dh leL;k Hkh mRiUu gksrh gSA uxj ds vUnj fLFkr ckjkr ?kjksa ls izk;% tu&lkekU; dks ,oa ckjkr ?kj ds fudV ds fuokfl;ksa dks vlqfo/kk Hkh gksrh gSA mDr ds n`f"Vxr ckjkr ?kj lapkyu dh vuqefr uxj fuxe lhek {ks= ds ckgj fLFkr {ks=ksa esa iznku dh tk;sxhA orZeku esa vf/kdka'k ckjkr ?kj uxj fuxe lhek ds vUrxZr fLFkr gS vr,o bl mifof/k ds ykxw gksus ls 2 o"kksZa dk le; ckjkr ?kjksa dks uxj fuxe lhek {ks= ds ckgj LFkkukUrfjr gksus ds fy;s iznku fd;k tk;sxkA mifof/k ykxw gksus ls] vLFkk;h :i ls] ek= 2 o"kksZa dh vof/k rd uxj fuxe lhekUrxZr fLFkr ckjkr ?kjksa dks fuEu izfrcU/kksa ds lkFk lapkyu dh vuqefr iznku dh tk;sxhA 1- vuqeU;rk ^ckjkr ?kj*@mRlo Hkou ds fuekZ.k dh vuqeU;rk egk;kstuk tksfuax jsxqys'kUl ds vuqlkj gksxhA 2- ek0 loksZPp U;k;ky; }kjk ppZ vkQ xkWM ¼Qqy xklfiy½ cuke ds-ds-vkj-esftfLVd dkyksuh osyQs;j ,'kksfl,'ku esa ikfjr vkns'k fnukad 30-08-2000 esa Li"V fd;k tk pqdk gS fd /ouh iznw"k.k ds ekudksa dk vuqikyu fd;k tkuk ck/;dkjh gS ,oa jk=h 10-00 cts ls ysdj izkr% 06%00 cts rd ykmMLihdj dk iz;ksx iw.kZr% oftZr gSA vr,o ckjkr ?kj lapkykdksa dks iznw"k.k fu;a=.k foHkkx }kjk fu/kkZfjr /ouh iznw"k.k ds ekudkas dk vfuok;Z :i ls vuqikyu djuk gksxk ,oa jk=h ds 10%00 cts ls izkr% 06-00 cts rd ykmMLihdj@Mh-ts- bR;kfn dk mi;ksx iw.kZr% oftZr jgsxkA 3- ckjkr ?kj ds lapkykdksa dks cqfdax djkus okys O;fDr;ksa ls cqfdax ls iwoZ bl vk'k; dk 'kiFk i= izkIr djuk gksxk fd ckjkr ?kj esa 100 eh0 vf/kd nwj ls ckjkr ugha vk;sxh ,oa ckjkr fo|eku lM+d dh pkSM+kbZ ds vf/kdre ,d pkSFkkbZ Hkkx esa O;ofLFkr :i ls fudkyh tk;sxh] ftlls fd tu&lkekU; dks vkokxeu esa dksbZ vlqfo/kk u gks] bldk mYya?ku djus dh fLFkfr esa cqfdax djkus okys O;fDr ,oa vU; lEcfU/kr O;fDr;ksa ds fo:) oS/kkfud dk;Zokgh dh tk;sxhA 4- Hkw[k.M dk {ks=Qy U;wure 600 oxZehVj 5- Hkw[k.M dk QzUVst U;wure 10 ehVj 6- lM+d dh fo|eku pkSM+kbZ U;wure 12 ehVj 7- Hkw&vkPNknu ¼d½ fufeZr@fodflr {ks= 30 izfr'kr ¼[k½ u,@vfodflr {ks= 40 izfr'kr
-8 ,Q-,-vkj-
¼d½ fufeZr@fodflr {ks= 1-00 ¼[k½ u,@vfodflr {ks= 1-50 9- Hkou dh ÅWpkbZ 30 ehVj ls de pkSMs+ ekxZ ij fLFkr Hkouksa dh vf/kdre ÅWpkbZ lM+d dh fo|eku pkSM+kbZ rFkk QzUV lsV&cSd ds ;ksx ds Ms<+ xquk ls vf/kd ugha gksxh] ijUrq 30 ehVj ,oa mlls vf/kd pkSM+s ekxksaZ ij fLFkr Hkouksa gsrq ;g izfrcU/k ykxw ugha gksxkA Hkou dh vf/kdre ÅWpkbZ lajf{kr Lekjd@gSjhVsM LFky ls nwjh] ,;jiksVZ Quy tksu rFkk vU; LVsV~;qVjh izfrcU/kksa ls Hkh fu;fU=r gksxhA 10- lSV cSd ^ckjkr ?kj*@^mRlo Hkou* i`Fkdhd`r ¼fMVsPM½ Hkou ds :i esa gksxk rFkk Hkw[k.M ds {ks=Qy ds vk/kkj ij U;wure lSV&cSd fu;ekuqlkj gksaxs%& Hkw[k.M dk {ks=Qy ¼oxZehVj½ U;wure lSV&cSd ¼ehVj½ vxz i`"B Ik'oZ&1 Ik'oZ&2 2000 rd 04-0 1-5 1-5 1-0 2000 ls vf/kd 12-0 5-0 5-0 5-0 11- ikfdZax ekud izR;sd 100 oxZehVj ry {ks=Qy ij 2-0 ^leku dkj LFky* dh O;oLFkk Hkw[k.M ds vUnj djuh gksxhA ikfdZax dh x.kuk Hkw[k.M esa vf/kdre vuqeU; ry {ks=Qy ij dh tk,xhA mDr ds vfrfjDr ;g Hkh izfrcU/k gksxk fd Hkw[k.M ds lEiw.kZ {ks=Qy dk U;wure ,d&pkSFkkbZ Hkkx okgu ikfdZax gsrq vkjf{kr jgsxk] ftl ij dksbZ vU; xfrfof/k vuqeU; ugha gksxhA 12- cslesaV cslesUV dh vuqekU;rk Hkou mifof/k ds izLrj&3-9 ds vuqlkj gksxhA 13- vuqKk dh izfdz;k ubZ ;kstukvksa@vuqeksfnr gksus okys ys&vkmV IykUl esa ckjkr ?kj@mRlo Hkou gsrq fu/kkZfjr ekudks ds vuqlkj igys gh visf{kr la[;k esa Hkw[k.Mksa dk fpUghdj.k fd;k tk,xk vkSj ckjkr ?kj ds fuekZ.k dh vuqKk dsoy bl iz;kstu gsrq fpfUgr@vkjf{kr Hkw[k.Mksa ij gh nh tk,xhA fo|eku fodflr dkyksfu;ksa@{ks=ksa esa vuqKk iznku djus gsrq izLrkfor LFky ds lEcU/k esa U;wure ,d ekg dh le;kfof/k iznku djrs gq, turk ls vkifRr@lq>ko mfpr ek/;e ls vkefU=r fd;s tk,axs ,oa muds fuLrkj.k ds mijkUr ekufp= Lohd`[email protected] dh dk;Zokgh dh tk,xh rFkk ckjkr ?kj@ mRlo Hkou vuqeU; fd;s tkus ij vkosnd ls tksfuax jsxqys'kUl ds vk/kkj ij izHkko 'kqYd Hkh fy;k tk,xkA During the course of hearing, learned counsel for the Development Authority has produced the Master Plan before us. In respect of the zonal plan of the city, learned counsel has made a statement that so far only one zonal plan has been prepared for Civil Lines and the adjoining area.
Regard being had to the fact that the Master Plan of the city was published on 13.7.2006 and the zonal development plan could be prepared of only one sub-zone i.e. B-4 on 7.3.2011 which was enforced from 18.3.2011. It is amazing that after 19 years of enforcement of Master Plan the zonal plan for entire city is yet to be made except one area.
It is apposite to refer the statutory provisions which regulate development of the area. The State Government enacted the U.P. Urban Planning and Development Act, 1973 with the object of planned development of the developed area.
Chapter-II of the Act, 1973 deals with the Development Authority and its objects. Section-3 deals with declaration of the development areas; Section-4 provides that the State Government may constitute a Development Authority for any development area. Chapter-III deals with the Master Plan and Zonal Development Plan. A Master Plan is prepared by the experts keeping future needs in the view. Section-8 of the Act, 1973 reads as under:
"8. Civil survey of, and master plan for the development area.--(1) The Authority shall as soon as may be, prepare a master plan for the development area.
(2) The master plan shall
(a) define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of framework within which the zonal development plans of the various zones may be prepared.
(3) The master plan may provide for any other matter which may be necessary for the proper development of the development area."
Section-9 deals with Zonal Development Plans. As the Master Plan requires that the developed area be divided in various zones. Relevant provision of Section-9 reads as under:
"9. Zonal Development Plans.-
(1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which the development area may be divided.
(2) A zonal development plan may---
(a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses;
(b) specify the standards of population density and building density;
(c) ... ... ...
(d) In particular, contain provisions regarding all or any of the following matters, namely-
(i) ... ... ...
(ii) the allotment or reservation of land for roads, open spaces, gardens, recreation-grounds, schools, markets and other public purposes;
(iii) the development of any area into a township or colony and the restrictions and conditions subject to which such development may be undertaken or carried out;
(iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings:
(v) ... ... ...
(vi) ... ... ...
(vii) ... ... ...
(viii) ... ... ...
(ix) the prohibitions or restrictions regarding erection of shops, work-shops, warehouses of factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality,
(x) ... ... ...
(xi) the restrictions regarding the use of any site for purposes other than erection of buildings;
(xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly, in such zone or area."
Chapter-IV of the Act, 1973 deals with the amendment of Master Plan and the Zonal Plan. Sub-sections (1) and (2) of Section-13 of the Act, 1973 provide that the Authority can make the amendment which does not affect the character of plan and the extent of land use or the standard of population density. Sub-section (2) of Section-13 empowers the State Government to make the amendment in the Master Plan. Sub-sections (3), (4), (5), (6) and (7) of Section 13 of the Act, 1973 lays down the procedure for the amendment in the Master Plan. Chapter-V of the Act, 1973 deals with the development of lands. Section 14 requires that in the area which has been declared as development area under Section 3, no development shall be undertaken or carried out without permission in writing from the Vice Chairman. Section 15 of the Act, 1973 deals with the application for permission. Sub-section 5 of Section 15 of the Act, 1973 provide that if the permission is refused, the aggrieved person may appeal to the Chairman against the said order. Section 16 of the Act, 1973 prohibits use of land and building in contravention with the plan. Section 26 lays down the penalties and development is undertaken or carries out in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction under Section 14 of the Act, 1973. Sub-section (2) of Section 26 provides that if any person contravenes the provisions of Section 16 or the condition prescribed by the Regulations shall be punishable with the fine which may extend to Rs. 25000/- and in case of continuing offence Rs. 1250/- for everyday. Sub-section (3) of Section 26 further provides that the said act shall be punishable with the imprisonment for a term which may extend to six months or with fine.
Section 28-A of the Act, 1973 has been inserted by U.P. Act No. 3 of 1997 which reads as under:
"28-A. Power to seal unauthorised development: ---(1) It shall be lawful for the Vice-Chairman or an officer empowered by him in the 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 scaled, the Vice-Chairman or the officer empowered by him in this behalf, as the case may be, 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."
The aforesaid statutory provisions clearly demonstrate that the Development Authority has ample power to get its bye-laws implemented effectively but no action has been taken by the Development Authority for compliance of its bye-laws dealing with marriage halls and most of the marriage halls are running in blatant violation of bye-laws.
As noticed above, in the city there are 200 marriage halls in Allahabad. It is an admitted case of the Development Authority that none of the marriage halls are in conformity with the bye-laws made by Prayagraj Development Authority. It is also admitted at the bar by the Development Authority that the area earmarked for underground parking is not available in any of the marriage halls. It is evident from the aforesaid facts that the bye-laws have been completely breached by marriage hall owners with impunity.
It is a trite law that it is duty of the Court to enforce performance of the statutory obligation by the statutory authorities and tax payers have a legal right to demand compliance of law and the statutory provisions which have been made for the benefit of the residents of locality. The Supreme Court in the case of Sri K. Ramdas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and others5, has observed that "there is special interest in the performance of the duty. All the residents in the area have their interest in the performance of the duty. The special and substantial interest of the residents in the area are injured by all the illegal constructions.
In the case of Sri K. Ramdas Shenoy (supra) the Municipal Committee had approved construction of a cinema hall on the ground that the site was earmarked for construction of lecture hall. The High Court declined to quash the resolution on the ground that cinema hall owner has spent huge amount. The matter went to the Supreme Court which set aside the judgment of the High Court and held that "the rights of the residents in the area are invaded by an illegal construction of a cinema hall building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirement of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the power of the municipality, the Court will quash the order passed by municipalities in such cases.
In the case of Machavarapu Srinivasa Rao v. Vijaywada, Guntur, Tenli Mangal Giri Urban Development Authority6, the Supreme Court has observed that the Master Plan or Zonal Development Plan is approved by the State Government. After they are finalized even the State Government / Development Authority cannot use the land for any purpose other than specified therein except by amendment in Master Plan. In the case of R.K. Mittal v. State of U.P.7, the Court has considered the provisions of the U.P. Urban Planning and Land Development Act, 1973 and has held that "the Master Plan and the Zonal Plan specified the user as a residential and, therefore, those plots cannot be used for other purposes. The plans have a binding effect in law. If the scheme / master plan is being nullified by an arbitrary act in excess and derogation of power of the Development Authority under law, the Court will intervene and would direct such authority to take appropriate action and whenever necessary even quash the orders of the Development Authority". The Court has further held that the convenience of the residents and ecological impact are relevant considerations for the Courts while deciding such issues. It is held that 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.
In the case of Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and others8, the Court has noticed the need of planned development of cities and highlighted the need of the public good and observed that the private interest stand subordinate to the public good quoting with approval the judgment in Friends Colony Development Committee v. State of Orissa9. Paragraph-22 of the judgment in Friends Colony Development Committee (supra) reads as under:
"22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."
In the case of Dipak Kumar Mukherjee (supra), the Court has also noticed that "illegal and unauthorized construction of buildings and other structures not only violates the municipal law and concept of the planned development of a particular area but also affects various fundamental and constitutional rights of other persons. The Court has also taken a judicial notice in respect of demolition of hutments, jhuggi jhopris belonging to the marginalized section of the society. Relevant part of the order in Dipak Kumar Mukherjee (supra) reads as under:
"8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors."
A similar observation has been made by the Supreme Court in the case of Shanti Sports Club and another v. Union of India and others10, the Court has observed that the affluent and powerful people with support of the political and executive apparatus of the State have constructed commercial complexes, multiplexes, malls etc. in blatant violation of the Master Plan and Zonal Development Plans. While these constructions are raised, the officers of the development authorities and other regulatory bodies turn blind eye due to influence of higher functionaries of the State for other extraneous reasons. The Court has also construed the grave consequence of their action on the present and future generation and the country as valid force to live in unplanned cities in urban areas. These illegal constructions contrary to the Master Plan and Zonal Plan put the unreasonable burden on infrastructure such as sewerage, water, electricity and they create chaos on the road. The Court has further observed that the pollution caused by the traffic congestion affects the health of pedestrians and the people belonging to weaker section of the society who do not have air conditioners, luxury cars and they are made to suffer from skin diseases, asthama, allergy and cancer. The Court has also observed that despite repeated judgments of the Supreme Court and the High Court, the builders and other affluent people pay scant regard to law and the directions of the Court. Relevant part of the judgment is extracted below:
"74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc. Such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. ..."
In the case of M.C. Mehta v. Union of India and others11, the Supreme Court elaborately went on to the issue of unauthorized use contrary to the Master Plan and Zonal Plan. The Court has referred the first principle of Stockholm Declaration of United Nations on Human Environment, 1972, and quoted with the approval of its earlier judgment in Virender Gaur and others v. State of Haryana and others12.
This Court has observed that the State has a duty to maintain the ecological plans and hygienic environment. The Supreme Court in a series of cases in M.C. Mehta (supra), has issued various directions in respect of running of commercial activity including the industry within the limits and has also issued a direction to the Government of NCT of Delhi to frame a policy for holding functions (marriages) in local area in NCT of Delhi. In pursuance of the orders passed by the Supreme Court, the Director of Local Bodies, Government of NCT of Delhi issued a public notice on 26.2.2019 and suggestions were invited from the public to the said draft. Some of the provisions in the draft policy are relevant for our purposes which can be considered by the PDA in its draft bye-laws which has been produced before us.
Along with the draft policy a Schedule-I is relevant for our purposes:
Schedule-I (Format of undertaking by the owner/ organizer of event w.r.t. General Condition) I ........................................(Owner/ Organizer), hereby confirm to abide by following general conditions to conduct .............................(name of event) on ................... (date & time.);
a. I will not permit any parking outside the authorized/ approved space on roadside.
b. I will deploy my own security guards to manage the parking within the premises.
c. The number of guests and parking space available will be displayed at the main entrance on a board of minimum size 6' x 4'.
d. No loudspeakers and bands will be permitted beyond 10.00PM e. Processions and horse-drawn carriage will not be permitted on the roads outside the Motel. However, Horse carriage will be allowed within the premises of Motels.
f. Sanitary conditions will be maintained in and around Motel during and and after the completion of duration of functions and in event of violation, the violators will be persecuted in accordance with law.
g. CCTV cameras on entry/ exit points shall be installed by myself with minimum 30 days recording capacity or in accordance with the directions of Police Authorities whichever is more.
h. I shall obtain fire clearance from Delhi Fire services for holding the functions in the Permanent building.
i. I shall make arrangement to dispose off solid waste as per the 'Solid Waste Management Rules 2016'.
j. I will make sufficient arrangement of water supply for consumption of guests and water for fire tank from legal sources.
k. In house treatment facility of waste water will be installed of sufficient capacity in conformity of CPCB and DPCC norms.
l. Treated water will be compulsorily used for non potable purpose.
m. No untreated waste will be discharged in to drain or sewer.
n. The premises will have electricity connection installed of requisite capacity and use of DG set must be resorted to in event of power failure only.
o. All DG sets installed will meet the air pollution and noise pollution norms as per CPCB.
Signature owner/ organizer A Division Bench of this Court in the case of Sushil Chandra Srivastava and another v. State of U.P. and others, Writ-C No. 1216 of 2019, decided on 20.8.2019, in somewhat similar context has observed as under:
"...It is indeed a great pity that authorities appears to have developed a tendency to wait a direction from the Government or the Courts to remind their duties cast upon them by the Statute. The Supreme Court in the case of Delhi Airtech Services (P) Ltd V. State of U.P (2011)9 SCC 354 has held that--
"42. As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary for the court dealing with such issues to know about the local conditions. Such conditions in different parts of the country are supposed to be better known to the High Courts. The High Courts would be in a better position to ascertain facts and to ensure and examine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non-compliance of other legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same can, in a number of cases, be effected, if the High Courts concerned assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution or degradation of ecology."
For all the reasons mentioned above, we are of the view that ends of justice requires to issue directions for running and maintaining marriage halls in the city. Accordingly, Prayagraj Development Authority is directed to get the proposed bye-laws approved from the State Government within four weeks from the date of certified copy of this order is received by it. Till the proposed bye-laws are approved and made effective by the State Government, the existing bye-laws shall continue with the directions issued below:
(i) In respect of noise pollution caused at marriage halls, the directions issued by this Court in Sushil Chandra Srivastava (supra) shall be applicable. No loudspeaker shall be used beyond the permissible limit under the schedule of Noise Pollution (Regulation and Control) Rules, 2000. It is pertinent to mention that in Sushil Chandra Srivastava (supra) the Court has issued direction to the competent authority not to grant permission for DJ;
(ii) If any marriage hall is found to violate the level of noise pollution or the judgment of this Court in Sushil Chandra Srivastava (supra), a fine of rupees one lakh at the first instance; five lakh at the second instance and ten lakhs at the third instance shall be imposed. After the third offence the licence under Section 3 read with Section 14 of the Sarais Act, 1867 shall be cancelled by the District Magistrate;
(iii) If any resident near the marriage hall is disturbed by the excessive noise caused by loudspeaker or other instruments which is beyond permissible limit under the Rules, 2000, shall inform the police at Telephone No. 100. In case any such complaint is made, the police shall follow the directions of this Court in Sushil Chandra Srivastava (supra).
(iv) Barat shall be assembled within 100 meters from marriage hall and in case of violation, the penalty shall be imposed upon the owner of the marriage hall.
(v) The marriage hall owner shall furnish an affidavit in the format of Schedule-I of Draft Policy of NCT of Delhi extracted above; and
(vi) As regards the draft temporarily proposed bye-laws are concerned, we do not approve it as it is against the existing bye-laws.
List this case on 6th November, 2019 before the appropriate Bench. The Secretary, PDA shall file the progress report on the next date.
Order Date :- 24.9.2019 Digamber