Allahabad High Court
Krishak/Mazdoor Evam Pashupalak Vikas ... vs State Of U.P. And Others on 25 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 1224, 2019 (136) ALR SOC 34 (ALL) (2019) 6 ADJ 201 (ALL), (2019) 6 ADJ 201 (ALL)
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 19.09.2018 Delivered on 25.03.2019 Court No. - 34 Case :- WRIT - C No. - 20999 of 2002 Petitioner :- Krishak/Mazdoor Evam Pashupalak Vikas Sewa Samiti, K.N. & Another Respondent :- State Of U.P. & Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C., M.C. Chaturvedi, Additional Advocate General, Prashant Mathur, Ravi Kant (Senior Advocate), P.K. Tripathi, S.P. Gupta (Senior Advocate), C.B. Gupta Hon'ble Sudhir Agarwal,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This writ petition has been filed as a public interest litigation under Articles 226 and 227 of Constitution of India bringing to the notice of this Court about conversion of a public park/open space into commercial venture i.e. multiplex consisting three Cinema Halls, Shopping Complex etc., in utter violation of Master Plan made under the provisions of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "U.P. Act, 1973") and U.P. Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975, (hereinafter referred to as "U.P. Act, 1975") at Plot No. 11, Block no. 6, (total area comprising 22,468.468 square meters) at Bhairav Ghat, Civil Lines, Kanpur Nagar.
2. Petitioner-1, M/s Krishak/Mazdoor Evam Pashupalak Vikas Sewa Samiti, Bisayakpur, Kanpur Nagar (hereinafter referred to as "Society) is registered under Societies Registration Act, 1860 (hereinafter referred to as "Act 1860"). The object of Society is to strive for preservation and protection of common utility land and also for restoration and preservation of green belt at Kanpur Nagar as per Master Plan approved therefor. Copy of Memorandum of Association and bye-laws of Society are on record as Annexures-1 and 2 to the writ petition. Item 18 thereof mentions following objective of Society:
"i;kZoj.k dh lqj{kk gsrq iz'kklu dks lg;ksx djuk] rFkk [kkyh Hkwfe ij 'kklu dh vuqefr ds i'pkr o`{kkjksi.k djuk o djokuk A"
"To co-operate with administration for protection of environment and doing plantation and encourage others for plantation on the vacant land after obtaining permission from Government"
(English translation by this Court)
3. Petitioner-2, Robby Sharma, founder Member of Society, claims to have been authorized by Society to file present writ petition.
4. It is said that Plot No. 11, Block No. 6 Area 22,468.468 square meter at Bhairav Ghat, Civil Lines, Kanpur Nagar (hereinafter referred to as "disputed land") is a "Nazul" land. On 09th March, 1934, a lease deed was executed for gardening purpose by Secretary of State for India in Council in favour of Shri Ayurvedic Vidyalaya, Cawnpore (now spelled as Kanpur Nagar). Lease deed stipulated that entire land measuring 5 acres, 2 rods, 8 poles and 4 square yards situated at Bhairav Ghat, described in the Schedule, was leased out to Ayurvedic Vidyalaya, Kanpur Nagar for a period of 30 years, commencing from 22nd December, 1930. The conditions of lease, besides others, provide that lessee will use demised premises for ornamental flowers, garden, and will not use for any purpose other than growth of flowers, creepers and similar plants and of such plants and shrubs as are grown for ornamental purposes or as hedges. Condition-3 of lease deed said that lessee will not erect any building or erections on the demised land except such temporary pillars as may be necessary for wire fencing or supporting creepers. The lessee will not dig bunker or remove earth for sale therein or therefrom. Conditions No. 5 and 6 read as under:
"5. The lessee will on the expiration or sooner determination of this lease peaceably surrender to the lessor the said land hereby demised.
6. The lessee will not without the written sanction of the Commissioner of the Allahabad Division assign underlot or otherwise transfer the said land or any part thereof or any of his rights or interests therein under these presents."
5. There was a renewal clause also permitting renewal for 30 years at one instance but not for a period exceeding 90 years from the date of grant of original lease. In the record of Nagar Mahapalika, Kanpur Nagar, "Occupant" of aforesaid land was mentioned as "Ayurvedic Garden". Some copies of Municipal Record of years 1943-1948, 1953-1958,1973-1978, 1987-1992 (Quinquennial Assessment Record) have been placed on record cumulatively as Annexure-9 to writ petition.
6. At the time when lease deed was granted, local body managing Kanpur City, was Town Improvement Trust, constituted under U.P. Town Improvement Act, 1919 (hereinafter referred to as "Act, 1919"). Thereafter, it was governed by Cawnpore Urban Area Development Act, 1945 (hereafter referred to as "CUAD Act, 1945"), which came to be repealed by Section 581 of U.P. Municipal Corporation Act, 1959 (hereinafter referred to as "Act, 1959") and powers, duties/obligations, functions etc of Kanpur Development Board stood transferred to Nagar Mahapalika, Kanpur Nagar.
7. Thereafter, for urban development, legislature enacted U.P. Act, 1973 and Kanpur Development Authority (hereinafter referred to as "KDA") came to be constituted therein.
8. It is a said that a Master Plan was prepared for Kanpur Nagar and enforced on 6.4.1970. Under said plan, disputed land was shown as "Park/Open Space/Recreation Center".
9. After enactment of U.P. Act, 1973, a Master Plan was prepared for Kanpur Nagar. Therein also Nazul Plot No. 11, Block-6 was shown as "Park/Open Space".
10. On 17th February 2000, in 86th meeting, respondent-3, KDA passed a resolution vide agenda item no. 86/62 to the effect that State Government has requested to allot plot in question to KDA for creation of "Multiplex Complex", for sale and display of handicraft, and for establishing Kanpur Haat. Copy of resolution has been placed on record as Annexure-13 of writ petition. Reference has been made to a letter dated 31st August, 1999 granting sanction for allotment of above Nazul land to KDA for establishing a Central Haat, Multiplex and Recreation Centre with condition that land will be allotted for public purpose, free of cost, and for commercial purpose at market rates.
11. Subsequently, Government, by order dated 18.11.1999, determined conditions for development of Kanpur Haat, Multiplex and Recreation Centre. As per aforesaid conditions, 7475.60 square meter land was to be allotted free of cost for Kanpur Haat, exhibition etc and 12334.52 square meter land for establishing Multiplex and Recreation Centre. It also imposed a condition that land in question shall be made available to Entrepreneurs by inviting Tenders and accepting highest bid by treating "Residential rates" as minimum market value.
12. KDA made an advertisement on 30.11.1999, inviting applications from Private Entrepreneurs for establishing Multiplex and Recreation Centre in 12334.52 square meter of disputed land. Auction was held on 20.12.1999. Highest bid of M/s Rave Entertainment Pvt. Ltd. (Respondent-4) at the rate of Rs. 3535/- per square metre was accepted. Circle rate of land for residential purposes was Rs. 3500/- per square meter. It is also stated that disputed land was reserved for establishment of "Ayurvedic Vidyalaya" and leased out to Sri Ayurvedic Vidyalaya, Bhairoghat but due to non fulfillment of conditions, lease was cancelled by Collector.
13. Sri Ayurvedic Vidyalaya Society filed a writ petition before this Court which was disposed of with direction for disposal of its representations dated 26.11.1999 and 14.6.1999. KDA therefore, proceeded and requested Collector to take early decision on the above representations. Said representations were decided by Collector vide order dated 28.01.2000. Thereafter, KDA requested Collector to handover possession of disputed land to it.
14. A lease agreement was executed between KDA and M/s Rave Entertainment Pvt. Ltd. (Respondent-4) on 19th February, 2000 granting lease for a period of 90 years.
15. With regard to process of auction, it is said that tailor-made conditions with regard to eligibility were made by KDA to enable respondent-4 to get hold of auction. There were only three bidders/applicants including respondent 4. It is also said that respondent-4 had formed a syndicate/cartel in collusion with KDA to frustrate public purpose and defraud public exchequer. Other applicants/bidders were none but agents of respondent-4 and a sham.
16. Respondent-4 (M/s Rave Entertainment Pvt. Ltd.) is controlled by Sri Shailesh Gupta, Director who is nephew of Sri Narendra Mohan, Member, Rajya Sabha and Editor-in-Chief, Dainik Jagaran, (a renowned Hindi daily Newspaper) at the time of filing writ petition. He enjoyed effective influence in the then ruling Bhartiya Janta Party and also had influence with authorities of KDA and State of U.P. being a Member of Parliament. He is also connected with a big Print Media Establishment publishing news-paper "Dainik Jagaran". He influenced U.P. Government while issuing Government Order (hereinafter referred to as "G.O.") dated 18.11.1999 which required auction of land for commercial purpose but "commercial rate" was changed to "residential rate" reducing minimum rate of property by almost half. The entire transaction was a sham, with an objective to change utilization as a Commercial Establishment, though it was meant to be used as Open Space or Park.
17. Bhairav Ghat is a very old cremation ground. KDA, embarrassing sentiments of people using cremation ground, allowed disputed land for establishment of Recreation Centre and Commercial Establishment. Entire exercise is in utter violation of U.P. Act, 1973 and U.P. Act, 1975. Land could not have been allocated for commercial purpose, since it was a park and open space and that had to be maintained. Initial proposal of KDA was for construction of handicraft market and Haat Bazar but changed for Multiplex Complex and Recreation Centre to fulfill vested interest of authorities of KDA and State Government, in collusion with respondent-4. There was a lot of resentment in the city. Some news-papers reported it (Copy of such news-paper published on 27.5.1999 are filed as Annexure-17 to writ petition). Petitioner made complaints to Governor vide letter dated 03.04.2002 and to Chief Town Planner, KDA on 15.04.2002. It sought to highlight several irregularities which are stated in para 28 of the writ petition and read as under:
"(a) That out of total Nazul Plot Area of 22463.468 only 19810.12 sq. Meter has been accounted for (12334.52 transferred to Kanpur Development Authority for Multiplex + 7475.60 sq. meter for Haat) the balance 2653.348 sq. Meter seems to have vanished as the same is not accounted for either by agenda item No. 86/62 of Kanpur Development or letter dated 18.11.1999 of Awas Department.
(b) That Advertisement was given for Auction of 12334.52 Sq. Meter Land for Multiplex and in it there was no proposal for any road of 13.71 Mt. Width on the west side instead "OPEN LAND" was shown thereby implying that the purchasing party was to construct any road if it wanted to out of its own purchased Land of 12334.52 Sq. Meter but the perusal of Agreement to lease dated 19.2.2000 will reveal that only 10,500 Sq. Mt. Land has been leased out and there is no account of 1834.52 Sq. Meter balance for which the beneficiary has not been made to pay and a road 13.71 Sq. Mt. at Kanpur Development Authority cost and Kanpur Development Authority Land has been proposed.
(c) That by the advertisement dated 30.11.1999, no sale of Brochures was offered therefore outside parties were in no position to know the reserved Residential Circle rates.
(d) That no Municipal Number of the property was given yet the rate charged was on the basis of Municipal Chak No. 6 How did all the three parties came to know of the reserve price as the offers were received by 14.12.1999 thereafter the Committee apprised the offers which were only technical offers for floppies and Hard copy it short listed the parties and after shortlisting it ought to have advertised and invited the short listed parties to participate in the offer or at least send them registered letters for the same but within six days by 20.12.1999 everything was finalized and plot stood auctioned.
(e) That by construction of road linking to Parvati bagla Road the site came to be situated on Parvati Bagla road and all along the Kanpur Development Authority Vice Chairman maintained that it was on Parvati Bangla road. Now Lamdon, this road has a higher circle rate than that quoted (supposedly in open auction) by all three parties including the highest bidder.
(f) That as already submitted earlier, Kanpur Development Authority never sells or leases its properties by constructing a boundary wall at its own cost. It cannot be included in the Development of the Plot side but in this case more than 15 feet high boundary has been built at Kanpur Development Authority costs and its cost not included in reserve auction price (Had there been a preexisting boundary then it may have been just-O.K. But not otherwise).
(g) That the road connecting the site to Paravati bagla road also comprises more than 100 Sq. Mt. and it should be public road but the possession of it too has been given to the Respondent No. 4 and it has put up its Barrier and security check post-etc, at the junction of this road with Parvati Bagla road, therefore, all this land has also been given to the beneficiary free of cost.
(h) That it will not be irrelevant to mention that the 86th meeting in which the Agenda Item No. 62 was decided was held on 17.2.2000 and the minutes prepared by officer order-No. 1710/KDA/99-2000 dated 10.3.2000 but the Agreement to lease was hurriedly made on 19.2.2000 and the auction rate and total premium was not even mentioned and deliberately kept vague and only the total amount payable alongwith 18 % interest has been mentioned from which the Premium has to be guessed and calculated. Actually this beneficiary had deposited Rs. 10900633.00 being one fourth the Premium for 12334.52 Sq. meter which was total Rs. 4,36,025,28.20 but afterwards the managed to free himself from paying for 1834.52 Sq. meter land and instead KDA proposed building the road on the west at its own cost which was not at all advertised.
(i) That it is regrettable that in spite of detailed and exhaustive complaint followed by series of reminders, no action has been taken by the State as the beneficiaries of the fraudulent deal were powerful persons belonging to the Ruling Party and the petitioners have been formed to seek redressal from this Honourable High Court." (Emphasis Added)
18. Allotment of land, meant for Park/Open Land for commercial purpose, at residential rates and entire exercise has been challenged, alleging that it is all illegal, collusive, against public interest and in violation of statutory provisions. Without change of Master Plan, user of land has been changed illegally. There is blatant disregard of statutory scheme of development in Kanpur City. It is said that in a clandestine manner, KDA misled entire things, inasmuch as, initially it proposed public purpose of establishing a "handicraft market" and "Haat Bazar", about thousand residential quarters and thousand shops. Hence, it was incumbent upon it to have encouraged cottage and handicraft industries, but with a view to benefit an individual, enjoying huge clout with authorities, a deal in a clandestine manner has been entered into. Petitioners, therefore, have prayed that constructions illegally raised on the disputed land, be directed to be demolished and land should be restored to Ayurvedic Garden. KDA be further directed to make a project for development of disputed land as an "Ayurvedic Garden" in consultation with Botanical Garden Authority, Lucknow and other appropriate authorities and restore green cover with herbal, ornamental and medicinal plants etc.
19. This writ petition was entertained on 20th May, 2002 and following order was passed:
"Heard the learned counsel for the petitioners.
Learned counsel representing the respondent no. 4 prays for and is granted three weeks time for filing counter-affidavit in opposition to this writ petition.
The learned Standing Counsel representing the respondent nos. 1,2 and 6 may also file counter-affidavit in opposition to the writ petition within the same period as prayed.
List this petition for admission thereafter.
In the meanwhile, considering the facts and circumstances as brought on record, it is directed that the status-quo as on today in respect of that part of the land in dispute which is lying vacant shall be maintained till the next date of listing."
(emphasis added)
20. KDA (respondent 3) filed counter affidavit sworn by Smt. Amita Arya, Section Officer, Zone 1, KDA, Kanpur, on 17th July, 2003. It is said that petitioner has concealed material facts and attempted to mislead Court by stating incorrect facts on material points in respect of Nazul Plot No. 11, (area 22,463 square meter) situated at Parwati Bagla Road, Bhairo Ghat (Rani Ghat) Kanpur. A registered lease deed was executed on 09th March, 1934 by the then Government in favour of Ayurvedic Vidyalaya Committee (impleaded as respondent-5 in the writ petition). Term of lease was 30 years w.e.f. 22.12.1930, which expired on 22.12.1960. It was subject to renewal for another term of 30 years. The purpose of lease specified in the lease deed was for growing ornamental flowers, garden, bushes, hedges, creepers and other ornamental plants. Respondent-5 violated terms of lease and never utilized leased out land for fulfillment of objects for which lease was executed . The lessee also raised unauthorized constructions over said land. Consequently, State cancelled/determined lease vide letter dated 18.7.1961 and possession was taken over by State Government.
21. In 1994, State Government took a decision to auction this land but it could not materialise. In 1999, Government decided to develop Kanpur Haat and Multiplex Centre over disputed land. Accordingly, it issued G.O. dated 18th November, 1999 and in-furtherance thereof possession of land was handed over to KDA for execution of said Scheme. KDA then published advertisements in daily news-paper Amar Ujala (Kanpur edition) and Times of India, New Delhi on 30.11.1999 and 1.12.1999, inviting applications from intending parties for development of Multiplex Centre. Decision was taken by KDA on 20.12.1999 to lease out land to respondent-4 and agreement was executed between respondents- 3 and 4, accordingly. The agreement has been acted upon. Respondent-4 had paid entire consideration in terms of the agreement. It has already constructed and completed Multiplex Centre which includes three Picture Halls, Show-rooms, Shopping Complex, Hotels, Cafes and Park etc. Remaining land is reserved for development of "Kanpur Haat" and same is in possession of KDA.
22. It is further stated that respondent-5 filed Writ Petition No. 53863 of 1999 impleading Commissioner, Kanpur Division; Kanpur, District Magistrate; Kanpur Nagar; KDA through its Vice-chairman and KDA through its Secretary as, respondents-1 to 4 and sought following reliefs:
"(i) to issue writ, order or direction in the nature of mandamus commanding the Respondents to renew the lease deed of the petitioner or to convert the lease-hold right into free-hold as prayed for by the petitioner.
(ii) to issue writ, order or direction in the nature of mandamus restraining the Respondents from changing the nature of the property in any manner whatsoever during the pendency of the writ petition in this Hon'ble Court.
(iii) to issue a writ, order or direction in the nature of mandamus commanding the Respondents not to transfer/alienate the property of the petitioner to Kanpur Development Authority, Kanpur.
(iv) to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(v) to award cost of this petition to the petitioner"
(Emphasis Added)
23. Writ petition was disposed of vide order dated 21.12.1999 directing authority concerned to decide representations dated 26.11.1999 and 14.06.1998 of respondent-5 within 2 months. The said order reads as under:
"Shri A.K. Shukla, learned counsel appeared for the respondents.
We have heard counsel for the parties. This petition is disposed of with the direction to the authority concerned to decide the petitioner's representation dated 26.11.1999 and 14.06.1999 preferably within two months from the date of production of a certified copy of this order in accordance with law and till disposal of the said representation the property in dispute shall not be transferred or sold."
24. Thereupon, District Magistrate, Kanpur Nagar passed order on 28th January, 2000 rejecting representations, holding that respondent-5 had no right over property in dispute and the same had extinguished about 40 years back. KDA executed registered lease deed in favour of respondent-4 on 19.02.2000 and handed over possession of land in dispute on 28.02.2000. Respondent-5 filed another Writ Petition No. 20676 of 2000, which was dismissed on 04.05.2000 with liberty to respondent-5 to approach Civil Court. The order dated 04.05.2000 reads as under:
"Heard Sri Pankaj Bhatia learned counsel for the petitioner, Sri A.K.Shukla appearing for respondent No. 1 and Sri Rakesh Tiwari appearing for Respondent No. 5. The lease of the disputed land is said to have been cancelled in the year 1961. The petitioner has no right to use the said land as the right is now vested in the State Govt. Subsequently, in January 2000 a portion of the said land is leased out in favour of Respondent No. 5. It is admitted to the petitioner that the said portion of land which was leased out in January 2000 is in possession of the respondent no. 5.
After hearing learned counsel for the parties we are of the opinion that certain facts which have been raised in this case, cannot be decided under Article 226 of the Constitution of India. The petitioner may approach before the Civil Court. The writ petition is accordingly dismissed." (Emphasis added)
25. Thereafter, respondent-4 raised constructions over land in dispute and completed the same. Respondent-5 filed an application under Section 91 CPC in the Court of District Judge, Kanpur Nagar which was registered as Application No. 100 of 2000, stating that Plot No. 11 lies in green belt area of Master Plan and cannot be allotted to respondent-4 for establishing Multiplex Centre. It prayed for permission to file suit for declaration and injunction as lease executed by KDA in favour of respondent-4 was illegal. District Judge, Kanpur vide order dated 31.08.2000 granted permission and allowed application. Thereafter respondent-4 filed Civil Revision No. 428 of 2000, wherein an interim order was passed on 1.10.2000 by this Court. Thereafter, Original Suit No. 380 of 2000 was filed by Raja Ram Soni in the Court of Civil Judge (J.D.), Kanpur Nagar claiming the said land to be his own on the basis of "Will" allegedly executed by one Triguni Narain Dubey, Numberdar. Trial Court passed ad interim order dated 14.11.2000 directing parties to maintain status quo. Thereafter, respondent-4 filed Writ Petition No. 55101 of 2000, wherein order dated 14.11.2000 was stayed and writ petition was connected with Writ Petition No. 6393 of 1999 and 20675 of 2000. Another Original Suit No. 819 of 2000 was filed by respondent- 5 praying for a decree for renewal of lease of land in his favour and convert the same into free-hold. After obtaining Commissioner's report, which was submitted on 30.11.2000, Civil Judge (J.D.) Kanpur Nagar passed an order on 08th January, 2001, accepted plaintiff's application and restrained defendants from raising any construction over plot in question. First Appeal From Order No. 70 of 2001 was brought to this Court against order dated 8th January, 2001 wherein an interim order was passed on 22.01.2001 to the following effect:
"Until further order the Respondents may make construction on the land in question at his own risk and subject to the decision of the appeal. If the appeal fails, the appellants undertakes to remove the construction." (Emphasis Added)
26. It is further stated by respondent-3 that respondent 5 made several attempts by filing writ petitions, suits etc. but always failed in his attempt to restrain respondents. Land in question was never in possession of respondent-5 after determination of lease. Allegations made in writ petition are false and baseless. Plot in question has never been Park/Open Space, hence does not come within ambit of U.P. Act No. 1975. No Ayurvedic Vidyalaya ever existed over disputed land. Resolution for construction of Kanpur Haat and Multiplex Centre was approved by KDA vide Item No. 86/62 in the meeting held on 17.2.2000. There was no irregularity in finalization of lease of land in favour of respondent-4. The entire transaction is open and transparent. Lease money was fixed as per directions of Government and highest bidder has been granted lease. People coming for cremation at Bhairav Ghat have not been disturbed by Recreation Centre and Multiplex. Writ petition has been filed at the behest of respondent-5 to create obstruction in the entire process at a belated stage. They have not explained as to why petitioners were sleeping over matter for almost 3 years. Development work has been done by KDA for benefit of project of "Kanpur Haat". Frivolous allegations have been made against respondent-4 so as to colour baseless case of petitioners. Before making constructions, all formalities and requisite permissions were obtained and there is no illegality in constructions raised by respondent-4.
27. A separate counter affidavit has been filed on behalf of respondent-4 sworn by Sri Prashant Vaish on 28.6.2002. It is said that respondent no. 4 is a limited company registered under Companies Act, 1956. Its aims and object is to provide Recreation parks, organise healthy entertainment facilities, sports facilities, games indoor and outdoor, fun affairs, exhibition, tournaments, competitions etc, to public at reasonable charges. Plot No. 11 is a "Nazul" land having area 22,463 square meter, situate near Bhairo Ghat, burning place of dead bodies at Kanpur. On the two sides of this plot, there are roads. On Northern side, after 30 feet road, there lies an open land which is used by Washerman for washing cloths and drying. Beyond this plot, there is river Ganga. On Western and Eastern side of plot, there are residential bungalows and an old tannery lying closed at the time of filing counter affidavit. On eastern side, after road, NWF Tannery, commonly known as Flex is situated and thereafter situate a Thermal Power House run by Coal. Land being Nazul, State Government is owner and District Magistrate, Kanpur Nagar has administrative control over it. Lease was granted by State to "Ayurvedic Vidyalaya" Kanpur, a Society registered under Act, 1890 vide lease dated 22.12.1930 for growing medicinal plants and herbs. Lease was initially for a period of 30 years with provision for renewal for further period of 30 years subject to maximum period of 90 years on the condition that on expiry of every 30 years, new lease will be executed at the request and cost of lessee. No request for renewal was made by "Ayurvedic Vidyalaya" for renewal after expiry of initial period of 30 years. It also did not pay any charges as contemplated in lease deed. It had committed default in payment of rent and committed breach of other terms and conditions of lease. District Magistrate, Kanpur gave notices on 09.05.1958 and 08.02.1960, requiring the above lessee to show cause why lease be not determined. Lease was cancelled by order dated 18th July, 1961. This order has become final. After expiry of more than 12 years, on 18th March, 1972, for the first time, "Ayurvedic Vidyalaya" filed an application for renewal of lease. However, it was never renewed in favour of Ayurvedic Vidyalaya. There was no place for modern recreation to people of Kanpur conforming international standards. State Government decided to lease out Plot No. 11 for establishing a Multiplex Park and to provide recreation facilities conforming international standards to residents of Kanpur vide letter dated 18.11.1999. Government directed District Magistrate, Kanpur Nagar with copy to KDA to take necessary action in the matter. KDA framed a scheme and issued an advertisement in leading newspapers, inviting tenders from public for establishment of Recreation Centre and Park. Interested parties were to deposit to Rs. One Crore as earnest money. Cost of scheme was estimated at Rs. 27 Crores. Respondent-4 deposited one Crore in cash on 14th December, 1999. It also deposited Fixed Deposit Receipts worth Rs. 29 Crore with KDA. District Magistrate transferred land to KDA vide letter dated 7th February, 2000 on certain terms and conditions mentioned therein in conformity with G.O. dated 18.11.1999. In the meantime, Writ Petition No. 53863 of 1999, filed by petitioner, was disposed of and as per directions issued therein, District Magistrate decided representation of respondent-5 by order dated 28th January 2000. It was held that G.O. dated 16.07.1974 relied by respondent-5 was a forged document and never issued by Government. KDA executed a lease deed in favour of respondent-4 on 19.2.2000 and possession of 10,500 square metre land was handed over on 26.2.2000. Respondent-5 filed another Writ Petition No. 20676 of 2000, challenging order dated 28th January, 2000 but writ petition was dismissed on 4th May, 2000 with liberty to respondent-5 to approach Civil Court. Original Suit No. 819 of 2000 was filed by respondent-5 in which an interim injunction was granted, but thereagainst respondent-4 filed FAFO No. 70 of 2000 and interim injunction was stayed by this Court. Assailing bonafide of petitioner, it is said that Society appears to have been constituted with mala fide intention. It has never rendered any public service and not known in the stare of public life. It has never appeared in news-paper with regard to its public activities. Office bearers of Society are indulging only in blackmailing giving threats to respondent-4, Company, demanding Rs. 4 lacs, failing which continuous litigation shall be prosecuted. On 30.5.2000, a report has also been lodged in Police Station Kohna, Kanpur Nagar in this regard. Writ petition is not a Public Interest Litigation, but a vexatious mala fide litigation at the instance of respondent-5. Rest paras averred in counter affidavit of respondent-4 are almost similar to that of reply given by respondent-3, hence we are not repeating and same would be referred whenever necessary. With regard to clearance from Fire Department, however, it is said that Chief Fire Officer sent letter dated 11th October, 2001 to District Magistrate, Kanpur Nagar conveying no objection and certifying satisfactory fire appliances and other arrangements made in multiplex.
28. A supplementary affidavit has been filed by petitioners sworn by petitioner-2 on 18th September, 2009 and alongwith said affidavit, a large number of documents from record of KDA have been filed. Aforesaid documents are claimed to have been received by petitioner under Right to Information Act, 2005 (hereinafter referred to as "R.T.I. Act, 2005"). It is said that question of land user was never examined by KDA either before allotment of land to respondent-4 or at the time of sanction of plan submitted by respondent-4.
29. It is further said in Supplementary Affidavit that in paras-27, 31 and 33 of counter affidavit, KDA has made a false statement regarding status of disputed land in Master Plan, denying that it was never meant for garden/park though as a matter of fact, it was so, as is evident from record of KDA itself. At the time of allotment of land to respondent-4, disputed land was shown as "Ayurvedic Garden" but at no point of time land user was ever changed in accordance with procedure prescribed therefor. KDA had made a false assertion in this regard in paras 27, 31 and 33 of its counter affidavit. Then some further documents of State Government have also been placed on record after receiving the same under R.T.I. Act, 2005. We propose to deal with aforesaid documents and contents thereof while discussing the matter on merits.
30. A supplementary counter affidavit has been filed to aforesaid supplementary affidavit by respondents-3 and 4 both and the same we also propose to refer at a later stage.
31. Heard Sri Rahul Mishra, learned counsel for petitioner, Sri M.C. Chaturvedi, Additional Advocate General assisted by Sri Prashant Mathur, learned Addl. Chief Standing Counsel for State of U.P., Sri Ravi Kant, learned Senior Advocate assisted by Sri P.K.Tripathi, learned counsel for Kanpur Development Authority and Sri S.P. Gupta, learned Senior Advocate assisted by Sri C.B. Gupta, learned counsel for respondent-4.
32. The facts, as borne out from respective pleadings and record of the case, if summarise chronologically, the resultant position comes as under :-
22.12.1930 :-
Secretary to Government, United Provinces issued Government Order permitting execution of lease in favour of M/s Ayurvedic Vidyalaya, Kanpur.
21.06.1932 :-
A lease deed was executed between Secretary to Government and Executive Officer, Municipal Board, Kanpur.
09.03.1934 :-
A lease deed for 30 years of disputed "Nazul" land (area 22,468.468 square meter) was executed by the then Government in favour of M/s Ayurvedic Vidyalaya, Kanpur. It commenced from from 22.12.1930 and 30 years completed on 21.12.1960.
09.05.1958 :-
Collector, Kanpur gave notice to lessee to show-cause why lease be not cancelled since there was default in payment of rent and breach of other conditions.
08.02.1960 :-
Another notice by Collector to lessee to show-cause why lease be not cancelled.
18.07.1961 :-
Lease of M/s Ayurvedic Vidyalaya, Kanpur was cancelled and possession was taken by Collector.
14.11.1961 :-
Collector disapproved/rejected proposal for renewal of lease.
18.03.1972 :- Lessee, M/s Ayurvedic Vidyalaya, Kanpur filed an application requesting for renewal of lease.
10.09.1974 :-
State Government directed Collector, Kanpur to take steps for renewal of lease in favour of M/s Ayurvedic Vidyalaya, Kanpur as per law for a further period of 30 years from 1960.
02.12.1992 :-
Government Order permitting transfer of Government land to Development Authorities provided that if such transfer is for public interest, development of park etc., then such transfer will be without any charges but if transfer is for commercial purposes, then it shall be on market value of land.
14.01.1995 :-
Commissioner, Kanpur constituted a Committee for auction of disputed land but said auction could not materialize.
10.12.1997 :-
M/s Ayurvedic Vidyalaya, Kanpur submitted an application with Treasury Challan of one hundred rupees requesting to make disputed land free-hold.
11.05.1999 :-
Collector, Kanpur requested State Government to permit transfer of land to KDA.
01.06.1999 :-
Letter of Sri Narendra Mohan, Member of Parliament to Sri Dileep Kumar Kotiya, Principal Secretary, Chief Minister, State of U.P. recommending transfer of Nazul land to KDA at the minimum charges. Contents of letter reads as under:-
^^vkt esjh vkils izkr% dky VsyhQksu ij tks ckr gqbZ Fkh mlh lanHkZ esa eSa ;g i= fy[k jgk gwWaA dkuiqj uxj esa viuh ljdkj dh 'kksHkk c<+kus ds fy, vkSj uxjokfl;ksa ds fy, dkuiqj esa ,d gkWV ,oa euksjatu dsUnz dh ;kstuk dkuiqj fodkl izkf/kdj.k }kjk Lohd`r dh x;h gSA blesa ljdkj dh vksj ls cgqr gh de /ku yxuk gSA lp rks ;g gS fd /ku yxkuk gh ugha gS] ,slh gh O;oLFkk eSa djk jgk gwWaA ;g gkWV ,oa euksjatu dsUnz ,d utwy dh Hkwfe ij cuk;k tkuk gS vkSj bldk f'kykU;kl ek0 eq[;ea=h th ds }kjk djokus dk fu.kZ; ge yksxksa us fy;k gSA bl ckjs esa dkuiqj ds vk;qDr egksn; ls ckr gks pqdh vkSj ftykf/kdkjh egksn; ls HkhA dkuiqj fodkl izkf/kdj.k ds mik/;{k Jh ,u0,u0 izlkn us ,d i= ftykf/kdkjh dks fy[kk gS] ftldh izfrfyfi lkFk esa layXu gSA bl i= ds ckn lkjh tkap&iM+rky djus ds mijkar dkuiqj ds ftykf/kdkjh us bl ifj;kstuk ij viuh lgefr O;Dr dh vSj viuh laLrqfr ds lkFk ,d i= Jh vrqy dqekj xqIrk] lfpo vkokl ,oa uxj fodkl] mRrj izns'k 'kklu] y[kuÅ dks Hkstk Fkk] ftldh izfrfyfi lkFk esa Hkst jgk gwWaA vc jkT; ljdkj dks ek= ;g vkns'k nsuk gS fd utwy ds bl Hkw[k.M dks dkuiqj fodkl izkf/kdj.k U;wure fdjk;s ij gLrkarfjr dj nsaA vkils esjk vuqjks/k gS fd vki bl ekeys ij fopkj dj ysa] rkfd ge dkuiqj uxj dks dqN ns ldsa vkSj vknj.kh; eq[;ea=h th ls bldk f'kykU;kl 'kh?kz djok ldsA*** "With reference to whatsoever talks I had with you over telephone this morning, I am writing this letter. To highlight government achievement in Kanpur Nagar and for the convenience of city dwellers, establishment of a Haat and Entertainment Center in Kanpur has been sanctioned by the Kanpur Development Authority. In this plan, only a paltry amount is to be invested on behalf of the government. Truly speaking, money is not to be invested at all and I am planning accordingly.
This Haat and Entertainment Centre is to be constructed at Nazul land. We have decided to get its foundation stone laid by the Hon'ble Chief Minister. In this connection, deliberations have been held with the Commissioner of Kanpur as also with the District Magistrate. The Vice Chairman of Kanpur Development Authority Shri N.N. Prasad has written a letter to the District Magistrate, a copy whereof is annexed hereto. After holding all inquiries subsequent to the receipt of this letter, the District Magistrate, Kanpur expressed his concurrence for this project and sent with his recommendation a letter to Shri Atul Kumar Gupta, Secretary, Housing and Urban Development, Government of Uttar Pradesh, Lucknow, a copy whereof is being sent herewith. Now, the State Government has just to pass an order for transfer of this plot to the Kanpur Development Authority on a minimum rent.
I request your good-self to kindly take this matter into consideration, so that we can give something to Kanpur Nagar and can get its foundation stone laid by the Hon'ble Chief Minister at the earliest." (Emphasis Added) (English Translation by Court) 01.06.1999 :-
Letter of Sri Mahendra Mohan Gupta to Sri Atul Kumar Gupta, Secretary Housing and Urban Planning, requesting for earliest transfer of disputed land to KDA. It reads as under:-
^^fiz; vrqy HkkbZ] vkils dkuiqj 'kgj esa dkuiqj gkWV ,oa euksjatu rFkk eYVhIysDl dsUnz cukus ds laca/k esa ppkZ gqbZ FkhA bl laca/k esa dkuiqj fodkl izkf/kdj.k dks utwy dh Hkwfe dks gLrkrafjr djuk gsa d`i;k bl dk;Z dks 'kh?kz ls 'kh?kz djokus dh d`ik djsa] rkfd dkuiqj 'kgj esa izns'k ljdkj ds }kjk vPNs dk;Z iwjs gks ldsaA** "Dear Brother Atul, Deliberations were held with you for construction of a Kanpur Haat & Entertainment and Multiplex Centre at Kanpur Nagar. In this connection, the Nazul land is to be transferred to Kanpur Development Authority. Kindly get this process completed at the earliest, so that the good pieces of work being undertaken by the Government in Kanpur Nagar may be completed." (Emphasis Added) (English Translation by Court) 02.06.1999 :-
Sri Kotiya, Secretary to Chief Minister sent a letter to Secretary, Housing for examination of comments. Relevant note of Sri Kotiya reads as under:-
^^d`i;k layXu i=ksa dk voyksdu djus dk d"V djsa ftlesa dkuqij esa ,d gkWV ,oa euksjatu dsUnz dh dkuiqj fodkl izkf/kdj.k dh ;kstuk ds fy, utwy Hkwfe dks dkuiqj fodkl izkf/kdj.k dks gLrkUrfjr djus dk izLrko Hkstk x;k gSA d`i;k izLrko ds ijh{k.kksijkUr fnukad 7 twu 1999 rd i=koyh ij vk[;k dh vis{kk dh xbZ gSA** "Kindly have perusal of enclosed letters wherein a proposal was sent for transfer of Nazul land to Kanpur Development Authority for its project of construction of a Haat and Entertainment Centre at Kanpur.
A report on the file, post scrutiny of the proposal, is desired by June, 7, 1999." (Emphasis Added) (English Translation by Court) 05.08.1999 :-
Collector's report to Government that no letter depositing one-forth self-assessment charges for free-hold by M/s Ayurvedic Vidyalaya, Kanpur was received in the office of Collector. G.O. dated 16.07.1974 was received in the office of Collector but no steps for renewal was taken and this was communicated to Deputy Administrator, Nagar Mahapalika, Kanpur vide letter dated 23.11.1974 sent by Collector.
10.08.1999 :-
Section Officer submitted proposal for permitting transfer of land to KDA and such area of land which is to be utilized for commercial purposes, charges as per market rate should be paid by KDA.
23.08.1999 :-
The said proposal was approved by concerned Minister. It was approved that land proposed to be transferred for public purposes may be transferred to KDA without any charges.
17.09.1999 :-
KDA requested for allotment of entire land without any charges by treating development of land for market like Delhi Haat and Delhi Craft Museum as also development of land on area 22463.468 square meter for Multiplex Cinema Complex treating as residential.
23.09.1999 :-
Government not agreeing with aforesaid proposal, still sought opinion of Collector.
04.10.1999 :-
Collector, Kanpur opined that transfer of land for Multiplex Recreation Centre will be commercial and should not be transferred without any charges but no opinion was expressed on the transfer of land for development of market as Kanpur Haat.
11.10.1999 :-
Sri Javed Aihteshaam, Deputy Secretary, Housing submitted note that development of 7475.60 square meter of land for Kanpur Haat shall be by KDA and, therefore, it is to be treated as public purposes and land be transferred free but so far as 12334.52 square meter of land for Multiplex Recreation Centre is concerned, it is clearly for commercial purposes and there is no justification for its transfer, free of charge. However, it recommended that Multiplex Recreation Centre land may also be transferred on token amount or free of cost treating it to be a public purposes.
15.10.1999 :-
Sri Atul Kumar Gupta, Secretary, Housing submitted following note:-
^^ftykf/kdkjh] dkuiqj uxj }kjk miyC/k djkbZ xbZ lwpuk ds vk/kkj ij ;g Li"V gS fd dsUnzh; gkWV ds fy, nh tkus okyh Hkwfe lkoZtfud iz;kstu gsrq gS& blesa xzkeh.k {ks= dh gLrf'kYi o gFkdj?kk mRikndksa dk izn'kZu fd;k tkuk fufgr gS rFkk Hkkjr ljdkj ds izeks'kuy dk;Zdze vUrxZr gSA vr,o bl iz;kstu gsrq nh tkus okyh Hkwfe izkf/kdj.k dks fu%'kqYd fn;s tkus dh laLrqfr dh xbZ gSA nwljh vksj eYVhIysDl euksjatu dsUnz ftykf/kdkjh ds erkuqlkj O;olkf;d mn~ns'; gSA ;g mfpr gh gS vkSj blfy, bl gsrq O;olkf;d nj ns; gksxhA yxHkx 12000 oxZehVj Hkwfe dk ewY; :0 10]000 izfroxZehVj dh nj ls yxHkx :0 12 djksM laHkkfor gSA bl ewY; dh ns;rk ds lEcU/k esa mik/;{k] dkuiqj fodkl izkf/kdj.k ls okrkZ gqbZ FkhA mUgksaus crk;k fd bl ewY; ij eYVhIysDl ;kstuk vkfFkZd :i ls laHko ugha gS vkSj bl nj ij eYVhIysDl flusek gky LFkkfir dj ikus dk iz'u gh ugha gksrkA jkT; ljdkj dh fQYe uhfr 1999 esa fuEufyf[kr mYys[k gSa% ^^cgq&lkeqP; ¼eYVhIysDlst½ fQYe izn'kZu dh uohure fof/k gS tks fd rduhfd n`f"V ls vR;f/kd fodflr gSA mRrj izns'k esa ,sls eYVhIysDlst dh LFkkiuk] ftlesa de ls de rhu flusek x`g lfEefyr gksa] dks izksRlkfgr fd;k tk;sxkA jkT; }kjk 1-5 djksM ls vf/kd fuos'k okys ^eYVhIysDlst* dks euksjatu dj esa izFke o"kZ esa 'krizfr'kr f}rh; ,oa r`rh; o"kksZa esa 75&75 izfr'kr NwV nh tk;sxhA** eYVhIysDl dsUnz dks izksRlkfgr djus dh n`f"V ls ,d fodYi gks ldrk gS fd iz'uxr Hkwfe dks eYVhIysDl fuekZ.k gsrq futh m|fe;ksa dks fn;s tkus ds fy, Vs.Mj vkeaf=r fd;s tk;saA bl izdkj izkf/kdj.k dks tks ewY; izkIr gks mlesa ls bl Hkwfe dks fodflr djus ds fy, tks vko';d /kujkf'k izkf/kdj.k }kjk O;; dh tk;] mls ?kVkrs gq, vo'ks"k /kujkf'k gh izkf/kdj.k }kjk 'kklu dks ns; ewY; fu/kkZfjr fd;k tk;A bl /kujkf'k dks izkf/kdj.k }kjk bUQzkLV~Dpj fodkl fuf/k esa tek djk fn;k tk; rkfd mldk mi;ksx u djds bUQzkLV~Dpj esa fd;k tk ldsA mijksDr js[kkafdr Hkkx&d&[k ij fufgr izLrko ij mPpkuqeksnu izkIr djuk pkgsaA** "Based on the information provided by the District Magistrate, Kanpur Nagar, it is clear that the land to be given for Kendriya Haat (centralised market) is meant for public purpose, which includes holding exhibitions of handicrafts and handloom products of the rural areas, and it is under the promotional programme of the Government of India. Therefore, the land to be earmarked for this purpose, has been recommended to be given to the Authority free of charge.
On the other hand, the Multiplex Entertainment Centre, according to the District Magistrate, has a commercial purpose. This is certainly justifiable; and hence, the business rates will be payable for this. Approximately 12,000 sq. m. of land may be worth about Rs. 12 crores at the rate of Rs. 10,000 per sq. m. In relation to liability for this value, a deliberation was held with the Vice Chairman, Kanpur Development Authority. He has stated that multiplex scheme is not financially feasible at this price, and there is no question of establishing multiplex cinema halls at this rate. The State Government's Film Policy, 1999, mentions the following:
Multiplexes are the latest method of film exhibition, which is technically highly developed. In UP, setting up of such multiplexes, with at least three cinema halls, shall be encouraged. Multiplexes investing more than 1.5 crores shall be given 100% tax exemption by the state in the first year, and 75 % tax exemption, severally, both in the second and third years.
With a view to encourage the multiplex centre, one option may be that tenders are invited to give the land in question to the private entrepreneurs for the construction of multiplexes. From whatsoever value may thus be received with the Authority, the amount essential to be spent by the authority for development may be deducted, and only the remaining amount may be determined by the Authority as value due for payment to the government. This amount may be deposited in the infrastructure development fund by the Authority so that it can be used in infrastructure without using it otherwise. On the above-mentioned underlined part, A-B, of the proposal given, you may like to obtain approval from higher authority." (Emphasis Added) (English translation by Court) Aforesaid note was approved by Sri Laljee Tandon (the then Housing and Urban Development Minister).
15.11.1999 :-
The above note was also approved by Chief Minister with further direction to take action immediately.
18.11.1999 :-
Government Order was issued permitting transfer of land to KDA in the manner, as approved above.
30.11.1999 and 01.12.1999 :-
Advertisements by KDA inviting applications from private entrepreneurs for establishing Multiplex Recreation Centre on 12334.52 square meter of land.
20.12.1999 :-
KDA decided to execute lease in favour of respondent-4.
06.01.2000 :-
State Minister, Housing sought information with regard to change of land use of disputed land.
28.01.2000 :-
Government sought information from Collector, Kanpur.
10.02.2000 :-
Collector's letter stating that transfer of land and permission for development of Multiplex Recreation Centre has been given vide G.O. dated 18.11.1999.
19.02.2000 :-
Registered agreement between KDA and respondent-4 allotting 10500 square meter of land.
07.03.2000 :-
Vice-Chairman, KDA requested Government to modify its order dated 18.11.1999, inasmuch as, permission of Multiplex Recreation Centre was allowed for 12334.52 square meter but lease deed in favour of respondent-4 was only for 10500 square meter of land since there existed a temple on some part of land and, therefore, order dated 18.11.1999 was sought to be amended.
06.04.2000 :-
Special Secretary forwarded above proposal stating that 1800 square meter of "Nazul" land has been left for temple but it would have been appropriate if proposal is sent by Collector.
07.04.2000 :-
Secretary directed to inform Collector and seek his opinion.
17.05.2000 :-
District Magistrate/Collector issued formal transfer letter, transferring land to KDA.
17.05.2000 :-
Permission was granted to respondent-4 for construction of Multiplex. It was permitted on following conditions :-
^^1- 1-3-2000 o 1-6-2000 dks ns; fd'rksa dk Hkqxrku lfgr 1-8-2000 rd djuk gksxkA 2- ftykf/kdkjh us euksjatu laca/kh vukifRr izek.ki= fnukad 1-8-2000 rd izkIr dj izLrqr djuk gksxkA 3- eq[; vfXu'keu vf/kdkjh ds funsZ'kkuqlkj 'keu O;oLFkk djuh gksxhA** "1. The payments of payable instalments as on 01.03.2000 and 01.06.2000 must be made by 01.08.2000 along with interest(?).
2. A 'No Objection Certificate' regarding entertainment must be produced after procuring the same from the District Magistrate latest by 01.08.2000.
3. The extinguishing arrangement must be made according to the directions issued by the Chief Fire Officer." (English Translation by Court) Conditions were to be complied by 01.08.2000.
11.07.2000 :-
Central Vigilance Commission made some enquiry on complaint received in respect of the above permission for development of land as Multiplex Complex.
07.08.2000 :-
Secretary, Housing approved proposal to seek comments from KDA.
28.09.2000 :-
Vice-Chairman, KDA sent his letter stating that there is no violation.
24.11.2000 :-
Note was submitted to Secretary suggesting to seek clarification on the following aspects from KDA.
^^(i) uhyke dh xbZ Hkwfe D;k dkuZj IykV gS vkSj fdrus QhV pkSMh lM+d ds fdukjs fLFkr gSA
(ii) dkuZj IykV gksus dh fLFkfr esa dkuZj dk vfrfjDr fy;k x;k gS vFkok ughaA
(iii) vkoklh; nj ij fy;s tkus dk D;k vk/kkj gSA
(iv) D;k izkf/kdj.k }kjk ckmUM~hoky fufeZr dh xbZ gSA ;fn gkWa rks mldh ykxr D;k gSA
(v) izkf/kdj.k }kjk vfrfjDr lM+d ds fy;s gkV ls Hkwfe vf/kxzg.k] gq, nj ij lM+d fuekZ.k] lhoj ykbZu jksM ykbV fuekZ.k dk vk/kkj ,oa ml ij O;; dh xbZ /kujkf'kA
(vi) uhykeh gsrq foKkiu dkuiqj ds lHkh lekpkj i=ksa esa u fn;s tkus dk dkj.kA
(vii) jso bUVjus'kuy izk0fy0 da0 ds }kjk D;k rhu lky ds vk;dj fjVuZ izkIr gq, tks foKkiu ds vuqlkj vko';d Fks\
(viii) D;k 11963 oxZ eh0 Hkwfe fu%'kqYd nh xbZ gS\** "1. Whether the auctioned land is a corner plot? And along how many feet wide road is it located?
2. In the event of there being a corner plot, whether anything extra has been obtained therefor or not?
3. What is the basis for being taken at the residential rate?
4. Whether the boundary-wall has been erected by the Authority? If so, what is the cost?
5. What is the basis of land acquisition by the Authority from Haat for additional road, and also of rates for construction of road, sewer line and for installation of road lights, and what amounts have been spent thereon?
6. Reason for the advertisement regarding auctioneering not being given to all newspapers of Kanpur?
7. Whether income tax returns of three years were received from Rev. International PVT Limited Company, which according to the advertisement, were necessary ?
8. Whether 11963 square metre of land was given free of cost?" (Emphasis Added) (English Translation by Court) In the same note, it was also mentioned that Government did not ask to make allotment on residential rates and KDA in its comments has tried to mislead Government by allotting land for commercial purposes on residential rates. Relevant extract of said note reads as under :-
^^bl laca/k esa ;g mYys[kuh; gS fd mik/;{k us viuh vk[;k esa va'k ^d* ij ^^12]334-52 oxZ eh- Hkwfe eYVhIysDl dsUnz dh LFkkiuk gsrq futh m|fe;ksa us VsUMj vkeaf=r dj vkoklh; nj dks U;wure nj ekudj uhykeh }kjk vkcafVr dh tk;sxh** dk mYys[k fd;k x;k gS ijUrq 'kklu ds vkns'k fnukad 18-11-99 esa ;g dgha ugha dgk x;k gS fd 12]334-52 oxZ eh- Hkwfe vkoklh; nj dks U;wure nj ekudj uhykeh ds }kjk vkcafVr dh tk;sxhA bl izdkj izkf/kdj.k }kjk O;olk; ds fy;s ¼eYVhIysDl fuekZ.k½ tks Hkwfe uhykeh dh xbZ gS mls vkoklh; nj dks U;wure nj ekudj uhyke fd;k x;k gS tks dnkfpr mfpr ugha gSA bl izdkj mik/;{k }kjk 'kklu ds vkns'k dks xyr "In this regard, it is noteworthy that the Vice Chairman has in part 'A' of his report mentioned that "For setting up a multiplex centre, 12,334.52 square meters of land shall be allocated by auctioneering after inviting tenders from private entrepreneurs, assuming residential rate as the minimum rate"; but in the government order dated 18.11.99, it is nowhere stated that 12,334.52 square meter land will be allocated by auctioneering, assuming residential rate as minimum rate. Thus, the land meant for commercial purpose (multiplex construction) has been auctioned by the Authority, taking the residential rate as the minimum rate, which is probably not appropriate. Thus, the government order has been used erroneously by the Vice Chairman. Thus, by auctioneering the land proposed for business purposes, on the basis of residential rate, may cause financial loss to the government. Therefore, it is necessary that points have been raised in the complaint letter should be clarified, only then correct position will be known. It would be appropriate in this matter that this be inquired into by the Commissioner so that the position can become clear. Submitted for order."
(Emphasis Added) (English Translation by Court) An enquiry from Commissioner, Kanpur was also suggested.
25.11.2000 :-
A Note was submitted to Superintending Engineer, Housing, KDA that respondent-4 has submitted a letter informing that payment has been made by cheque on 24.08.2000 but neither any certificate was given nor No Objection Certificate (hereinafter referred to as "NOC") from Entertainment Department was given. Therefore, conditions of sanction of map were not complied with.
11.01.2001 :-
Letter by KDA to respondent-4 that for contravention of conditions of sanction of map, sanction stands cancelled.
03.03.2001/16.03.2001/05.04.2001 :-
Secretary, Housing accepted note that complaint has been made wrongly referring to Cinema Policy of 1999.
05.10.2001 :-
Vice-Chairman, KDA letter to State Government stating that proposal of change of land use is presented to Government for its approval. Letter clearly shows that in existing Master Plan, land use shown is "Ayurvedic Garden" and it need be changed to commercial complex and Kanpur Haat. Relevant extract of Vice-Chairman, KDA's letter reads as under:-
^^^iz'uxr LFky dk dkuiqj dh orZeku izHkkoh egk;kstuk esa Hkw&iz;ksx ^vk;qosZfnd xkMsZu* nf'kZr gSA mDr LFky dks dkuiqj iqujhf{kr egk;kstuk&2021 ¼izk:i 1999 }kjk mDr LFky dsk ^eYVhIysDl @ okf.kfT;d iz;kstu ,oa dkuiqj gkV Hkwfe gLrkUrfjr dh x;h gS ijUrq izHkkoh egk;kstuk esa mDr LFky dk Hkw&iz;ksx vk;qosZfnd xkMsZu nf'kZr gSA vr% uxj fu;kstu ,oa fodkl vf/kfu;e&1974 dh /kkjk&13 ¼3½ ds vUrxZr utwy Hkw[k.M la[;k&11] Cykd 6] {ks=Qy 22463-468 o0eh0 Hkwfe tks egk;kstuk esa vk;qosZn xkMsZu nf'kZr gS] esa ls 10500 o0eh0 Hkwfe eYVhIysDl @ O;olkf;d iz;kstu ,oa 7775-60 o0eh0 Hkwfe dkuiqj gkV ¼'ks"k Hkwfe 7623-658 o0eh0 Hkwfe lM+d vkfn gsrq vkjf{kr½ esa Hkw&iz;ksx ifjorZu dk izLrko 'kklu dks Lohd`rkFkZ izLrqr gSA** "The land use of the land-in-question is shown as ''Ayurvedic Garden' in the ongoing Maha yojna of Kanpur. The said land has been transferred for Multiplex/Commercial purpose and Kanpur Haat under the Revised Maha Yojna -2021 ( Draft 1999), but in the existing Mahayojna, land use of the aforesaid land is shown to be Aayurvedic Garden. Hence, under section 13 (3) of the Urban Planning and Development Act-1974, out of total 22463.468 square meter land shown in the Mahayojna as Ayurved Garden; proposal for change of land use of 10500 square meter land for multiplex/ commercial purpose and 7775.60 square meter land for Kanpur Haat (remaining land 7623.658 square meter being reserved for road, etc) is submitted to the government for sanction." (Emphasis Added) (English Translation by Court) 07.12.2001 :-
Chief Fire Officer informed respondent-4 that on 11.10.2001 NOC for running Cinema Hall was issued but no NOC was given for use of Commercial Complex for shopping centre/market since safety requirements were not complete but without completion of the same shopping Centre and market have been made operative, which is illegal.
20.06.2002 :-
Respondent-4 insisted upon Chief Fire Officer to issue provisional NOC.
19.07.2002 :-
Chief Fire Officer, Kanpur Nagar advised respondent-4 not to pressurize for issue of provisional NOC but comply with requisite safety conditions so that after inspection proper NOC be issued.
18.10.2002 :-
Government considered proposal for allowing change of land use as requested by KDA to following effect:-
"vuqikyu fd, tkus ds LFkku ij u;k izLrko izsf"kr fd;k x;k gSA la'kksf/kr izLrko ds vUrxZr utwy Hkw[k.M la[;k&11 Cykd la[;k&6 lEiw.kZ {ks=Qy 22463-468 oxZehVj tks egk;kstuk esa ^^vk;qZosn xkMsZu** n'kkZ;k x;k gS] esa ls fuEuor Hkw&mi;ksx ifjofrZr fd;k tkuk gSA 1- {ks=Qy 10500 oxZehVj Hkwfe eYVhIysDl @ O;olkf;d iz;kstu gsrq ifjofrZr fd;k tkuk gSA 2- {ks=Qy 7775-60 oxZehVj dkuiqj gkV esa Hkw&mi;ksx ifjofrZr fd;k tkuk gSA 3- 'ks"k Hkwfe 7623-658 oxZehVj lM+d vkfn gsrq vkjf{kr crk;k x;k gSA iz'uxr izdj.k pwWafd Hkw&mi;ksx ifjorZu ls lEcfU/kr gSA vr% mik/;{k] fodkl izkf/kdj.k] dkuiqj }kjk izsf"kr of.kZr izLrko ij vkokl vuqHkkx&3 }kjk dk;Zokgh fd;k tkuk visf{kr gS ijUrq Hkw&mi;ksx ifjorZu ds iwoZ pwWafd izkf/kdj.k }kjk iz'uxr utwy Hkwfe ds lkis{k jktdh; dks"k esa /kujkf'k tek djus dh fLFkfr esa voxr ugha djk;k x;k gSA vr% izkf/kdj.k ls Hkh /kujkf'k tek djk;k tkuk vko';d gksxkA d`i;k oLrqfLFkfr ls fo'ks"k lfpo @ lfpo egksn; dks voxr djkrs gq, Hkw&mi;ksx ifjorZu ds fcUnq ij i=koyh vkokl vuqHkkx&3 dks izsf"kr djuk pkgsaA** "Instead of compliance, fresh proposal has been forwarded. Under revised proposal, at Nazul plot no 11, block no 6, having total area of 22463.468 square meter, shown as "Ayurved Garden" in the Master Plan, the following conversions of land use are to be done:
1. Land use of 10500 square meter is to be changed for multiplex/ commercial purpose.
2. Land use of 7775.60 square meter is to be changed for Kanpur Haat.
3. Remaining land of 7623.658 square meter is stated to be reserved for road, etc. The matter in question is related to change of land use. Hence, on the proposal forwarded by Vice Chairman, Development Authority, Kanpur; action is required to be taken by Awas Anubhag-3. However, insofar as the Authority has not informed about the status of deposition of money in the government account against the Nazul land in question prior to change of land use, hence, it shall be mandatory for the Authority to get the amount deposited. Apprising the Special Secretary/ Secretary of the subject matter, the file may please be forwarded to Awas Anubhag-3 for change of land use." (Emphasis Added) (English Translation by Court) 09.12.2002 :-
Secretary, Housing and Urban Planning observed that development of Multiplex in private sector, whether has been done after change of land use, in accordance with rules, or not, is not clear, therefore, Vice Chairman, KDA be directed to submit complete report. Relevant note reads as under:-
^^vuqHkkx dh fVIi.kh dk voyksdu fd;k x;kA ;g Li"V ugha gS fd 15 uoEcj] 99 ds 'kklukns'k dk ikyu fd;k x;k vFkok ughaA ;g Hkh Li"V ugha gS fd tks eYVh IysDl futh {ks= }kjk fufeZr fd;k x;k gS mldk fu;ekuqlkj Hkw&mi;ksx ifjorZu fd;k x;k gS vFkok ughaA 2- iz'uxr izdj.k esa dkuiqj fodkl izkf/kdj.k dh ;kstuk cgqr Li"V ugha gSA mfpr gksxk fd mik/;{k] dkuiqj fodkl izkf/kdj.k dks funsZf'kr fd;k tk; fd iwjh ;kstuk dh :i&js[kk cuokdj ikoj IokUV Vh-,e-th- ds le{k izLrqr djsaA funsZ'k vkt** "Perused the note of the section. It is not clear whether government order dated 15th November, 1999 was followed or not. It is also not clear whether or not the land use of multiplex constructed by private sector has been changed according to rules.
2. The plan of Kanpur Development Authority is not clear in the instant matter. It will be proper that the Vice Chairman, Kanpur Development Authority may be directed to prepare outlines of the entire plan in power point and to present the same before the T.M.G. Ordered today."
(Emphasis Added) (English Translation by Court) 19.12.2002 :-
Letter sent to KDA in terms of Secretary, Housing and Urban Planning note dated 09.12.2002. Contents of letter reads as under:-
^^mi;qDRk fo"k;d vkids i= la[;k&411@3xk@ih0,0@2002] fnukad 5-10-2002 ds lUnHkZ esa eq>s vkils ;g dgus dk funsZ'k gqvk gS fd iz'uxr izdj.k esa adkuqij fodkl izkf/kdj.k dh ;kstuk Li"V ugha gS] vr% vkidks funsZf'kr fd;k tkrk gS fd lEcfU/kr iz'uxr ;kstuk dh :i js[kk cuokdj ikoj IokbUV Vh0,e0th0 ds le{k rRdky izLrqr djus dk d"V djsaA** "With reference to letter no 411/3Ga/P.A. dated 5.10.2002 on the above mentioned subject, I am directed to say that the plan of Kanpur Development Authority in respect of matter- in-question is not clear. Hence, you are directed to prepare outlines of the concerned plan in Power Point and present the same before T.M.G. on immediate basis."
(Emphasis Added) (English Translation by Court) 16.08.2007 :-
Chief Fire Officer informed respondent-4 to complete safety conditions which were not observed and detailed in said letter, failing which NOC already issued shall stands cancelled.
23.01.2009 :-
Letter of Government (Department of Housing and Urban Planning) replied to petitioner-2 about his query with respect to procedure for change of land use in Master Plan and it says as under:-
^^iqujhf{kr ekLVj Iyku esa fdlh Hkw&mi;ksx ds la'kks/ku vkfn ds laca/k esa fu;e ,oa izfdz;k m0iz0 uxj fu;kstu ,oa fodkl vf/kfu;e] 1973 esa izkfo/kkfur gSA ¼d½ iwoZ ds vuqeU; Hkw&mi;ksx dksA ¼[k½ iwoZ ds vuqeU; Hkw&mi;ksx dksA 2- m0iz0 uxj fu;kstu ,oa fodkl vf/kfu;e] 1973 dh /kkjk 13 ¼3½ esa fofgr izkfo/kkuksa ds ifjizs{; esa izLrkfor Hkw&mi;ksx ds laca/k esa turk ls izkIr vkifRr;ksa ,oa lq>koksa ij fopkj fd;s tkus gsrq izkf/kdj.k Lrj ij lfefr xfBr gSA izkIr vkifRr;ksa ,oa lq>koksa ij lquokbZ ds mijkar mDr lfefr 'kklu dks laLrqfr @ izLrko izsf"kr djrh gS] ftl ij 'kklu Lrj ij fu;eksa ds vUrxZr leqfpr dk;Zokgh dh tkrh gSA 3- ;g lwpuk tu lwpuk vf/kdkj vf/kfu;e 2005 ds ifjHkkf"kr lwpuk dh ifjHkk"kk esa ugha vkrk gSA vr,o lwpuk ns; ugha gSA 4- dkuqij fodkl izkf/kdj.k }kjk cuk;h x;h iqujhf{kr egk;kstuk&2021 ij mRrj izns'k uxj fu;kstu ,oa fodkl vf/kfu;e] 1973 dh /kkjk 11 ds vUrxZr fopkj fd;k x;k gSA** "In a revised Master Plan, the rules and regulations for any change in land use etc. are provided in the Uttar Pradesh Urban Planning and Development Act, 1973.
a) The land use permissible earlier.
b) The land use permissible earlier
2. A committee is constituted at the administrative level inviting objections and suggestions from the public for the proposed land use in view of the provisions of Section 13(3) of the Uttar Pradesh Urban Planning and Development Act, 1973. After considering all objections and suggestions received, the said committee sends a recommendation/ proposal to the Government, whereupon appropriate steps are taken under the rules at the government level.
3. This information does not fall within the definition of 'Information' as under The Right to Information Act, 2005. Hence, the information cannot be given.
4. The revised Master Plan 2012 prepared by the Kanpur Development Authority has been considered u/s 11 of the Uttar Pradesh Urban Planning and Development Act, 1973." (Emphasis Added) (English Translation by Court) 30.03.2009 :-
Information Officer, KDA's letter to petitioner-2 informing that notice was published in Newspapers from 26.04.2002 to 27.05.2002 inviting objections on proposed Master Plan of 2021. Government approved Master Plan of 2021 on 16.11.2006 and plans submitted for sanction between 2001 to 2006 were approved as per Master Plan of 1999.
16.04.2009 :-
KDA notice to respondent-4 informing that only 30% FAR could have been used for commercial purpose though on the spot 60 to 65 % has been used for commercial purpose and construction has also been made at the place meant for parking. Sanctioned map for various objections was never issued and, therefore, all the activities should be stopped failing which sealing/demolition proceedings would be taken.
20.11.2014 :-
KDA notice under Section 15(a) to respondent-4 stating that without completion certificate, construction on disputed land is being made for commercial purpose, which is illegal. Therefore, completion certificate, if obtained, be submitted failing which proceedings for ceiling/demolition would be initiated.
27.11.2017 :-
Map submitted by petitioner for sanction was rejected by KDA.
08.12.2017 :-
Vice-Chairman, KDA's letter to Principal Secretary, Housing and Urban Planning Development that land was allocated as per directions of State Government and map was accordingly sanctioned. In earlier plan, land use was "Ayurvedic Garden" which has been changed to commercial in Master Plan of 2021. It also says that as per directions of Court, for production of record, it was found that allotment file is not available after 04.08.2015 and file relating to sanction of map is not available after scanning/digitization and both files are missing. Vice-Chairman, KDA recommended for constitution of Committee at the level of Secretary, Housing and Urban Development for inquiry.
33. The facts noticed above are self-speaking. However, for the purpose of present case, we are not entering into the question whether lease initially granted to M/s Ayurvedic Vidyalaya was validly cancelled or not. Record and, in effect, notings submitted by various Authorities clearly show that there is no record to demonstrate that lease granted in favour of M/s Ayurvedic Vidyalaya was cancelled, and thereafter possession was taken by Collector, Kanpur itself or through any authorized Official. Neither order of cancellation of lease deed of M/s Ayurvedic Vidyalaya is available with respondents nor any possession memo is in existence. Authorities say that these documents are not available on record and not traceable. Whether said documents actually existed at any point of time, even this is a major question.
34. However, for the purpose of present case, these facts would not deviate us from considering main issue with regard to validity of construction of a Commercial Complex by respondent-4 on the disputed land and for the purpose of present case, we proceed by treating that disputed land was in possession of Collector at least in 1995, when on 14.01.1995, Commissioner, Kanpur constituted a Committee for auction of disputed land but the said auction could not be materialized.
35. It appears that in 1999, respondent-4 through its resources got interested in getting the aforesaid land for development of a Commercial Complex/ Multiplex Recreation Center and with that purpose, Authorities of KDA and District Administration were persuaded to take appropriate action by getting the land transferred to KDA. Record shows that in this process, Sri Narendra Mohan, Member of Parliament in 1999, had a discussion with District Administration i.e. Commissioner, District Magistrate/Collector, Kanpur and also Vice-Chairman of KDA as is evident from his letter dated 01.06.1999, which is on record. Thereupon, Vice-Chairman, KDA proposed to Government, transfer of land to KDA and sent a letter to District Magistrate, Kanpur. Immediately, thereupon Collector, Kanpur sent a letter to State Government seeking permission to transfer disputed land to KDA.
36. It is not in dispute that in the Master Plan, as it was effective in 1999, disputed land was shown as "Ayurvedic Garden". Last 50 years' Quinquennial Assessment Record of Municipality, starting from 1943-48 to 1987-98 also mention disputed land as "Ayurvedic Garden". After Collector sent letter, Sri Narendra Mohan, the then Member of Parliament, also sent a re-commendatory letter to the then Chief Minister through his Principal Secretary requesting to issue a formal direction so that Nazul land i.e. disputed land be transferred to KDA, after realizing minimum rent. A similar letter dated 01.06.1999 sent by Sri Mahendra Mohan Gupta on behalf of respondent-4 to the then Secretary, Housing and Urban Planning i.e. Sri Atul Kumar Gupta.
37. Thereafter, things proceeded with extreme pace. On the very next day i.e. 02.06.1999 Sri Dileep Kumar Kotiya, Principal Secretary to the then Chief Minister forwarded letter of Sri Narendra Mohan, accompanying relevant documents to Secretary, Housing asking him to examine the matter. Sri Kotiya also said that a report on the matter is expected along with record by 07.06.1999. The "desire of report" obviously suggested that it was on the part of the then Chief Minister. The note is self-speaking on this aspect.
38. In the meantime, M/s Ayurvedic Vidyalaya, Kanpur attempted to get the lease renewed or converted into free-hold but those proceedings were deferred for one or the other reasons. We are not concerned whether it was valid or not but in our view, this clearly suggests that Authorities were acting in a different but determined manner, therefore, request of M/s Ayurvedic Vidyalaya, Kanpur was not paid any heed and importance.
39. The procedure for transfer of land to KDA commenced with note dated 10.08.1999 submitted by Section Officer but he suggested that since transfer of land to KDA was for commercial purposes, hence KDA must be directed to pay charges on market rate. On 23.08.1999, proposal for transfer of land to KDA was approved but with direction that transfer of land for public purposes should be allowed without any charge but for rest area charges should be realised. KDA by letter dated 17.09.1999 requested Government to transfer entire disputed land without any charge so that it may be developed by establishing a market like Delhi Haat and Delhi Craft Museum. For development of Multiplex Cinema Complex, charges if any, should be taken as applicable to residential.
40. Initially, Government was hesitant with aforesaid proposal and, therefore, on 23.09.1999 it sought opinion of Collector. He adhered to the proposal to charge market rate in respect of land which is to be used for commercial purposes but expressed no opinion with regard to transfer of land for development of market as Kanpur Haat. Sri Javed Aihteshaam, Deputy Secretary, Housing vide note dated 11.10.1999 clearly said that out of total 22463.468 square meter of land, 7475.60 square meter of land may be transferred for development of market like Kanpur Haat treating it to be a "public purposes" but rest of the land i.e. 12334.52 square meter of land, which is to be used for developing a Multiplex Recreation Centre, the same being a commercial purpose, there is no justification for its transfer free of charge. However, taking a lenient view, may be visualizing indication from earlier notings/correspondence, Deputy Secretary proposed that transfer of land for commercial purposes may be allowed on token amount or free of charge treating it to be a public purpose.
41. This suggestion prevailed with Sri Atul Kumar Gupta, Secretary, Housing and he also made a note that transfer of land for developing Multiplex Recreation Center at commercial rates would not be viable and, therefore, aforesaid land be allowed to be auctioned through the process of tender and whatever amount is received therefrom, after deducting the same from commercial rate, rest amount may be charged from KDA and said amount payable by KDA shall be kept in Infrastructure Development Fund to be used only for infrastructure.
42. This note was approved by the then Chief Minister on 15.11.1999 and within three days, on 18.11.1999, Government Order was issued permitting transfer of land to KDA in the manner as suggested by the then Secretary, Housing vide note dated 15.10.1999 which was approved by the then Chief Minister on 15.11.1999 itself.
43. Thereafter, again things proceeded very fast. KDA published advertisement in two newspapers on 30.11.1999 and 01.12.1999. It is said that only three applications were received whereafter allotment of land for developing Multiplex Recreation Center was settled in favor of respondent-4 and on 20.12.1999 itself lease-deed was executed in favor of respondent-4.
44. Thereafter, it appears that State Minister, Housing having received some complaint that without change of land use, it has been transferred and auctioned for commercial purposes, hence he made inquiry into this aspect vide noting dated 06.01.2000. Correspondence continued and record shows that in the Master Plan of 1999, land use of disputed land was never changed in accordance with procedure prescribed under U.P. Act, 1973.
45. Apprehending litigation, all Authorities and respondent-4 acted in collusion so as to get the construction completed within two years. Surprisingly even this fact was not taken care that construction has been raised without receiving requisite NOC from different authorities and even construction was made contrary to Plan submitted by respondent-4. Queries made in note dated 24.11.2000, which we have quoted above, virtually remained unanswered.
46. Since construction continued in contravention of conditions for sanction of map, therefore, sanction of map was cancelled vide letter dated 11.01.2001 sent by KDA to respondent-4. Still, respondent-4 continued with its project, completed the same and made it operational even though safety conditions were not complied. Even Fire Department's NOC was not obtained. These facts, we have already noticed. Chief Fire Officer's letter dated 16.08.2007 is also on record.
47. It further appears that with change of Government and Officials, the matter was taken strictly by Authorities concerned and compounding map and revised map submitted by respondent-4 were ultimately rejected by KDA on 27.11.2017. In the meantime, some documents and files also disappeared as is evident from Vice-Chairman, KDA's letter dated 08.12.2017 but the fact remains that respondent-4 not only successfully completed Multiplex Recreation Center but made it functional since 2002 and onwards and is still continuing to run it, earning profits, giving a complete go-by to various provisions of different Statutes including U.P. Act, 1973.
48. These facts are self-speaking. We have no hesitation in observing that between 1999 and 2002, from the stage of proposal till its materialization and also construction of Multiplex Recreation Center, in complete defiance of every requirement of Statutes, construction and change of land use was allowed on the part of respondent-4, in collusion with the then responsible Authorities, with impunity. Subsequently, KDA and other Authorities sought to take a strict view in the matter but for want of will or determination or zeal to adhere and get rule of law implemented, illegality committed by respondent-4, which was voluminously profitable for him, continued and still persist. Whatever has been done from the stage of allotment of land to respondent-4 and, thereafter, all in violation of statutory provisions, in one or the other way, as we have already discussed.
49. It is suggested that State Government issued G.O. dated 18.11.1999, permitting transfer of disputed land to KDA with clear stipulation that land shall be further utilized for development of market and Multiplex Recreation Center etc., which amounts to permission of change of land use by State Government, and KDA in following the said directions did not commit any illegality. It is urged that State Government was the owner of land and if has directed for use of land in a particular manner by transferring land to KDA, it had no option. Hence, it is argued that the mere fact that there was no alteration in the Master Plan of 1999 would have no consequence since State Government directed for use of land in a particular manner and that will prevail. In our view, the above submissions are patently misconceived and suggest blatant disregard and defiance of mandatory provisions of U.P. Act, 1973.
50. Now, we propose to consider above arguments in detail.
51. The issue is "whether transfer of land by State Government to KDA with specific direction that land shall be allotted to Private Entrepreneurs for development as Kanpur Haat and for Multiplex Commercial Recreation Centre, without there being any change in land use as per Master Plan was/is valid or not".
52. It has come on record that in Municipal records of the years 1943-1948, 1953-1958, 1973-1978, 1987-1998 i.e. Quinquennial Assessment Record (Annexure-9 to the writ petition), the disputed land was shown as "Ayurvedic Garden". In the Master Plan enforced with effect from 06.04.1970, land in dispute was shown as Park/ Open Space/ Recreation Centre. In Master Plan of 1999 also land use of disputed land was shown as "Ayurvedic Garden".
53. A Master Plan, once made final, cannot be changed by an individual authority at its discretion for the reason that procedure for change of Master Plan is provided in the Statute and that has to be observed. It is mandatory. In this regard, it would be appropriate to refer certain provisions of U.P. Act, 1973.
54. U.P. Act, 1973 gives due importance to Master Plan and Zonal Development Plan. What shall be contained in Master Plan, is provided in Section 8 of U.P. Act, 1973 which 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."
55. The procedure of preparation and approval of "Master Plan" is provided in Sections 10, 11 and 12 which need not be discussed at this stage since sanction of "Master Plan" and its enforcement on various dates with respect to different periods under the relevant statute is not disputed. Prior to U.P. Act, 1973, in Kanpur, the plan which was made applicable was termed as "Improvement Scheme" and the area upon which it operated was termed as "Regulated Area". Basically, the two in effect are not different whether termed as "Improvement Scheme" or "Master Plan". The question up for consideration is about changes permissible in an "Improvement Scheme" or "Master Plan" as also the user of land and building and the procedure therefor and also when a change of user is in contravention thereof.
56. Section 13 talks of amendment of plan. Section 16 prohibits use of land and building in contravention of plans.
57. Section 10 (1) clarifies that the word "Plan" in Sections 11, 12, 14 and 16 would mean "Master Plan" as well as the "Zonal Development Plan" for a Zone.
58. Section 13 permits an "Authority" to make such amendment in the Plan which do not effect important alterations in the character of the plan and do not relate to the extent of land uses or standards of population density. Sub-section (2) of Section 13, however, confers full power upon State Government to make amendment in the plan. Sub-sections (3), (4) and (5) provide procedure of such amendments whether proposed to be made by "Authority" or by the "State Government". It read as under:
"(3) Before making any amendments in the plan, the Authority, or, as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government.
(4) Every amendment made under this section shall be published in such manner as the Authority or the State Government, as the case may be, may specify, and the amendments shall come into operation either on the date of the first publication or on such other date as the Authority or the State Government, as the case may be, may fix.
(5) When the Authority makes any amendment in the plan under sub-section (1) it shall report to the State Government the full particulars of such amendments within thirty days of the date on which such amendments come into operation."
(emphasis added)
59. Whenever a dispute arises about the amendment sought to be made by Authority that it effects important alterations in the character of Plan etc., the dispute has to be settled by State Government.
60. A perusal of above provision shows that compliance of procedure is mandatory.
61. Section 16 puts an embargo on use or permission to be used of any building or land in a planned area otherwise than in conformity with such Plan. However, if on the date of enforcement of Plan, the land or building was used in any other manner, the same would continue subject to terms and conditions as may be prescribed by bye-laws. Use of land or building, in violation of Plan, and where development of land has been allowed to any person or body in violation of the conditions of such Development Plan, such infraction is an offence punishable under Section 26 of U.P. Act, 1973.
62. Section 27 provides for demolition of a construction made in violation of Plan and also lays procedure to be observed before passing such order of demolition.
63. The offences under U.P. Act, 1973 are compoundable under Section 32 which reads as under:
"32. Composition of offences.- (1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded by, the Vice-Chairman or any officer authorised by him in that behalf by general or special order, on such terms, including any term as regards payment of a composition fee, as the Vice-Chairman or such officer may think fit.
(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded."
64. Section 53 confers power upon State Government to exempt, by issue of a Notification in the Gazette, any land or building or classes of land or buildings, from all or any of the provisions of the Act or Rules or Regulations framed thereunder. It is not the case of the respondents that any such exemption was granted in respect of disputed land in accordance with Section 53.
65. Then power to make rules has been conferred upon State Government vide Section 55 for carrying out purposes of U.P. Act, 1973. Authorities have been given power to make Regulations under Section 56 which must be consistent with the Act and the Rules framed thereunder. Such Regulations can be made for the administration of affairs of Authority.
66. Thus, it is evident that development whereon is allowed to any person or body, such development must be consistent with the Master Plan or Development Plan.
67. Respondents, State of U.P. and KDA sought to argue that G.O. dated 18.11.1999 directing KDA to allot land for commercial purposes amounts to permission granted by State Government for change of land use.
68. The Court finds that the land which was shown as Park/ Open Space in 1970 Plan and as "Ayurvedic Garden" in Master Plan, 1999 was allowed to be used for commercial purposes which amounts to an important alteration in the character of Plan. It also cannot be said that such alteration did not effect the extent of land use or the standards of population density. Ex facie, this Court is of the view that the kind of alteration conceded by KDA and State Government in favour of Respondent-4 was beyond their competence and authority under Sub-section (1) of Section 13 of U.P. Act, 1973. Thus it was wholly without jurisdiction hence void and a nullity in the eyes of law.
69. Even otherwise, there is no averment in the entire counter affidavit or Supplementary Counter affidavit filed by KDA that procedure prescribed in Sub-sections (3), (4) and (5) of Section 13 was ever followed by KDA before allowing change of land use i.e. Commercial.
70. When law requires something to be done in a particular manner, the things done otherwise are prohibited. This principle was recognized in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by Supreme Court and this Court in a catena of judgements, which we do not propose to refer all but would like to refer a few recent one.
71. In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment, Court held :
"It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all."
72. In Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held :
"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."
73. The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440.
74. In Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477, it was held :
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
75. In State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 in para 26 of judgment, Court held :
"It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
76. The cumulative effect of various provisions of U.P. Act, 1973 shows that before finalizing a Master Plan, competent authority shall take all such steps which would include an opportunity to the residents of area concerned and others to submit their suggestions, objections, claims etc. and thereafter it shall be finalized. Once a "Master Plan" is finalized, submitted to Government and notified, thereafter its sanctity cannot be whittled down in a routine, casual and whimsical manner. The statute imposes an embargo against any action which is not consistent with the Plan. It is true that in a changing Society, a status quo for all times to come may not be countenanced. An elbow space thus has to be provided which may authorize the competent Authority/body concerned, in a very very limited manner, to make minor deviations to suit the changes. This has been done vide Section 13(1) of Act, 1973. There State Government has been empowered to alter the Plan. However, before doing so, again a well considered but a bit cumbersome procedure has been provided which entitles the residents and others also to have their say if they so desire. All these checks and measures are part of the statute to show that an approved Plan has to be adhered, as a rule, and its deviation, as a rarity. The authorities on their own, as and when they like, in a sheer administrative indiscreet manner, cannot clothe upon themselves such power of deviation/ variance of approved Plan. They, on their own, cannot authoritatively say that a particular change will not substantially alter the Plan or that such alteration can be or should be made.
77. The above discussion leads to an unequivocal inference that G.O. dated 18.11.1999, transferring disputed land to KDA, to that extent may not be bad, but further direction given therein that transferred disputed land shall be utilized for "Commercial Purposes", ignoring the fact that under approved and notified Master Plan, disputed land was a Herbal Garden/ Ayurvedic Garden and there was no change or alteration or modification in approved Master Plan and use of land other than the purpose provided in the Plan was wholly illegal and beyond jurisdiction. It could not have bound KDA to act in a manner contrary to Master Plan then operating, i.e. Master Plan of 1999. KDA, in proceeding to act as per directions of State Government and contrary to Master Plan, 1999, acted wholly illegally and allowed wholly unauthorized constructions on disputed land. Respondent-4 was/is a beneficiary, therefore, he is also guilty of acting illegally.
78. Moreover, even construction raised and commencement of commercial complex by respondent-4 was in the teeth of sanctioned map, which was cancelled. It was in violation of other provisions, inasmuch as, safety measures were not observed and no final NOC was granted by Fire Department. Entertainment Department also did not give any NOC. Therefore, entire action of respondent-4 in construction and making a Commercial Complex, functional, is also illegal.
79. At this stage, it was suggested that there is a provision for compounding and if this Court finds that development on disputed land for commercial purposes and construction of a Multiplex Recreation Center is illegal and unauthorized, still Court may allow compounding and/or may award adequate compensation instead of directing demolition of entire construction as that will result in wastage of huge fund, already invested in development, and that it would be against the interest of general public if such a huge investment is allowed to be wasted. The above argument, at the first blush, is a bit attractive but on a deeper scrutiny, we find a serious danger of an attempt to get approval of an illegal act by utilizing financial resources and thereby, an attempt to purchase legality in respect of an illegal act. This is not only against Statute but also against the public policy, unjust and discriminatory, inasmuch as, Rule of law will divide resourceful persons who can purchase such legality and validity by paying a few bucks, compelling those who have no such financial influence to be bound to observe law or face consequences of demolition etc.
80. Violation of Plan not only attracts a criminal liability but there are civil consequences also. Development Authority concerned has been empowered and is also under an obligation to make the things right by removing such violation/deviation and restoring Plan in its Notified state. The basic object of Authority is development and not destruction or devastation or diminution of planned development.
81. A deviation or violation of a Scheme or Plan cannot be made a means of profiteering by collecting huge amount from offenders/ violators and permitting them to continue to enjoy such deviation. If this stand is sustained, it would mean that the Statute is being read in a manner so as to confer an immunity upon resourceful people to violate law and permit them to continue to enjoy such violation for all times to come by paying some amount to the Authority. These violators basically come from Elite class. They find it easier vis a vis their status to part away any amount of money so as to retain consequence of violation of law. It add to their status also. Most builders have made it a part of their business. Simultaneously Development Authority also stand financially (officially and privately) benefited in allowing contravention of Plan and violation of a statutory embargo without exercising its power of restoration by taking action of demolition etc.
82. If such a suggestion or interpretation of clothing illegality by compounding, is upheld, it would not only encourage corruption and element of extraneous consideration but would also create two classes; one those who are bound to suffer in their efforts of making any deviation from Master Plan since they lack financial resources to pay the so called compounding fees for continuing to enjoy illegal and unlawful deviation; and, those who are rich, resourceful and capable to do so.
83. Such creation of two classes and classification which encourages corruption, is discriminatory and also against human rights. In the last 70 years of independence, if there is one field we can boast of a national all round development and that too multifold, it is the field of corruption. It has various shades. It is not confined to only one field of bribery, cash and kind, but has different colours and nuances. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so." While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely." Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally. We can look into it from another angle. Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms, we can say that corruption develops a range bound field of behaviour, attitude and beliefs. Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that, the real impact of corruption is, the poor suffers most, the poverty groves darker, and rich become richer.
84. This Court is of the view that argument is so patently outrageous that it has to be rejected and is accordingly rejected.
85. As noticed above, a perusal of U.P. Act, 1973 shows that except those cases which are covered by proviso to Section 16, there is a complete embargo against deviation from a Plan. The use of land or building which is not in conformity with such Plan is totally prohibited. It is also a criminal offence under Section 26 of U.P. Act, 1973. In fact, when there is a case of unlawful encroachment or obstruction, even those who are responsible for preventing such encroachment or obstruction are liable for criminal prosecution and punishment under Section 26-D of U.P. Act, 1973. Section 32 providing composition of offences is only in respect of criminal liability but not to retain the contravention of Plan which is prohibited by Section 16. That contravention, if continues, will have to face legal consequences. The only saving clause, one can read, is Section 13, whereby a change in Plan can be approved by State Government and if that has been done, situation may be different, otherwise the embargo is complete.
86. The reason for making an approved Plan sacrosanct and not to be touched easily is very evident. In the developed countries, a lot of emphasis is on the planned development of cities and urban areas. In fact, there the dividing line in the urban and rural areas is getting obliterated and one can say that every kind of local body is supposed to proceed with an objective of planned development. The object of planned development can be achieved by rigorous enforcement of Plans prepared after careful study of intricate issues of city management, scientific research, rationalization of loss and other issues. The people of developed countries have successfully achieved the objective of planned development contributing largely by strictly adhering to Plans, Local Laws and other directions including restrictions necessary for effective implementation of such Plans. They respect the laws enacted by legislature for regulating planned development of cities. One finds seldom complaint of violation of Master Plan etc. in construction of building; residential, institutional or commercial.
87. Unfortunately, the developing countries are example of depicting a scenario substantially different. This includes India and, in particular, certain northern States like State of Uttar Pradesh. These are example of blatant and scant respect to Master Plans and the laws relating thereto. The competent legislature though has enacted laws with pious objective of planned development in the cities and area governed by local bodies but the enforcing machinery is extremely poor and casual. They work hand in gloves with violators. The violators, i.e., the beneficiaries of direct violation of plans and the authorities responsible for restricting such violation both work with a sense of immunity from any consequential act.
88. Reflecting similar ethos, Court in Shanti Sports Club and Anr. Vs. Union of India and others, 2009(15) SCC 705 has said in paragraphs no. 74 and 75 as under:
"74. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized 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 unauthorized 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 realize 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 unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized 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."
"75. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
(Emphasis Added)
89. These very observations have been reiterated and approved in a subsequent decision in Sanjay Adlakha Vs. State of Haryana, 2011(6) SCALE 419.
90. Time and again Courts have observed that contravention of statute, violation of statutory plans and schemes, illegal and unauthorised encroachment, obstruction and illegal construction would never pay and this is also against the interest of Society at large but unfortunately Violators and officials of local bodies and Development Authorities responsible for implementation of Statute and Statutory Plans have enjoyed pleasure in more violation than its observance. This has rather filled coffer of individual officials substantially instead of benefiting State exchequer. A source of parallel economy commonly known as "black money" has developed which is running unabatedly under the shield provided by the beneficiaries of both the sides, i.e., the public as well as the State. Today, it is an open secret that Realty Sector is thriving basically on underhand economy. The apparent finances are like an iceberg comparing the real quantum of money involved. Moreover, the concerted unholy nexus between Reality Sector and Officials cause real loss and detriment to innocent individual homeseeker.
91. In Priyanka Estates International Pvt. Ltd. and Ors. Vs. State of Assam and others, JT 2009 (14) SC 654, Court observed:
"It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder."
92. In M.C. Mehta Vs. Union of India and others, JT 2006(2) SC 448, Court expressed its anguish against the mass violation of Master Plans and total inaction on the part of authorities responsible to execute it and said:
". . . . . this Court cannot remain a mute spectator when the violations also affect the environment and healthy living of law-abiders. The enormity of the problem which, to a great extent, is the doing of the authorities themselves, does not mean that a beginning should not be made to set things right. If the entire misuser cannot be stopped at one point of time because of its extensive nature, then it has to be stopped in a phased manner, beginning with major violators. There has to be a will to do it. . . . . . . .The things cannot be permitted to go on in this manner forever. On one hand, various laws are enacted, master plans are prepared by expert planners, provision is made in the plans also to tackle the problem of existing unauthorised constructions and misuses and, on the other hand, such illegal activities go on unabated openly under the gaze of everyone, without having any respect and regard for law and other citizens."
93. Courts have appreciated that a lot of technical, scientific and other concepts put forth in preparing a Master Plan for a coordinated systematic development of an area considering multifold aspects including the past, present and future requirement/objective/ purpose etc. They also take care of environment including flora and fauna. The maintenance of greenery is an integral necessity of a planned development for the purpose of maintaining healthy environment. Its importance cannot be undermined. It is for this reason, in every Plan, special attention is paid for open land, greenery, that is called green belt, parks, gardens etc. But, then, after approval of Plan, when actual execution comes, the first casualty is the area contemplated as open space, green belt, parks etc. Everybody wants to curtail such area by encroaching it, obstructing it, making unauthorised construction etc. It appears that a competition is going on and there is struggle of victory to the more resourceful one. It goes without saying that this competition is equally participated by officials for reasons other than bona fide. In other words, this Court has no hesitation in observing that an over all continuous increasing corruption one can see in development authorities where the development authorities have changed the meaning of "development authority" and read the words as if it amounts to development of officials of authorities. That being so, here comes the authority of Courts to check, stop and put the things right.
94. As we said that Development Authorities across the State have been working in more violation of Plan than adherence and such matters have come to this Court frequently.
95. In D.D. Vyas Vs. Ghaziabad Development Authority, AIR 1993 All. 57 a grievance was raised before this Court about utilization of open space reserved for a park in Ghaziabad either to construct building or otherwise it would defeat the purpose of preservation of environment and development of residential colonies shown in Master Plan. The Court observed that the writ petition is an apt example as to how the statutory object to secure preservation of environment and development can be defeated by authorities who lack dynamism, aestheticism and enthusiasm for development though assigned for development duties. Speaking on the objective of U.P. Act, 1973 the Court said that earlier growth in the State was haphazard and feeling necessity of developing areas tackling the problems of town planning and urban development in a rational manner and also to have the suitable expert bodies instead of the existing local bodies, found inadequate to cope with problem with passage of time, the Act was brought and development authorities on the pattern of Delhi Development Authority were established including the GDA at Ghaziabad. In the Master Plan an open space was earmarked for public park called "Adu Park" situated in Raj Nagar. However, no steps were taken for its development and on the contrary GDA started carving out plots on such open space dedicated for public park in the Plan and alienate the same, with a view to earn huge profits. This was challenged on the ground that GDA cannot alter the Plan duly approved by Government to the detriment of public at large. Disapproving such action of GDA and upholding the challenge the Division Bench observed that object of legislation constituting development authorities was to ensure fast and planned development of the areas which was an enormous work and could not be accomplished by the local bodies or authorities existed prior to the U.P. Act, 1973. A Plan can be said to have executed when entire works are done strictly in accordance with the Plan. Unless an open space reserved for development of public park is developed as such, the execution of Plan will remain incomplete. Buildings, as proposed in the Plan, may have come up, amenities, civic and others may have been provided and the people may have started living in the colony, yet the Plan cannot be said to have been executed fully, if an open space meant for a park is not developed as such. Such failure on the part of development authority would mean that ambition and objective of State that the areas reserved and approved to be developed in a particular manner has not been so developed. The duty of development authority is to implement the Plan in its entirety and not to distort it. The Court said that the impression gathered by GDA that their job is over when residential area became habitable is a delusion. Habitability and completion of construction work in the entire area according to Plan is one thing and development in entirety of the area, strictly in conformity with Plan is another. In paras 9, 10 and 16, the Court further said:
"9. It is a matter of great regret that the fond object for which the G.D.A. was constituted remained unaccomplished. The Raj Nagar scheme is meant for the reasonable accomplishment of the statutory object, which is to promote the orderly development of the town Ghaziabad and to preserve open spaces by reserving public parks with a view to protecting the residents from the ill effect of urbanisation. The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the town. No town is known for sky-scrapers, for myriad industries, for big commercial centres, for big monumental building, but for the attractive lay out of the town, for good landscapes, for beautiful parks and lawns, for expansive verdant cover, and for perfect social ecology. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity. In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under estimated. Private lawns or public parks are not a luxury, as they were considered in the past. A Public Park is a gift of modern civilisation, and is a significant factor for the improvement of the quality of life. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surrounding was a privilege of few, but now in a democratic set up, it is gift from the people to themselves. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology.
10. A benefit which one can get from the developed, well maintained and well manicured lawns in a big park, cannot be secured from undeveloped, morbid and shabby, open space. Whereas the former attract and invite the people to come, sit and rest, the latter is always stinky, dirty and abhorrent.
16. . . . . . Unless an open space is developed into a full-fledged park having gardens, trees, flower beds, plants, lawn, promenade etc., the environment will not improve and therefore the functionaries of the G.D.A. have remained grossly negligent in discharging their fundamental duty enjoined upon them by clause (g) to Article 5-A of the Constitution. Equally they failed to discharge their duty enshrined by Article 5-A(j). If the functionaries of the State instrumentalities show their averseness to the developmental activities, which are assigned to them, then the nation can never grow to the cherished heights. An ornamental park with well manicured lawns is not only a source of comfort to the public, but adds to the beauty of a town, as jewellery studded with pearls or diamonds add to the beauty of the person who wears it." (emphasis added)
96. Court also considered Section 13 and power of authority to make changes in plan and in paras 19, 22 and 23 said as under:
"19. . . . . . . . From Section 13(1), it is manifest that the authority may make only those amendments which do not affect material alterations in the character of the plan. It means the respondents do not have an absolute right of amending the master plan or the zonal development plan. The basic characteristic of such a plan cannot be altered by the authority. Only that amendment is permissible under Section 13(1) which does not affect the basic character of the plan. An open space lying for park in the plan forms a basic feature of the plan and that cannot be amended. A plan cannot be amended so as to denude the plan of such a basic feature. Section 13(1) can in no circumstances be interpreted so as to clothe the G.D.A. to utilise the open space reserved for a park either to construct building or use it in any other manner, which is foreign to the concept of a park.
22. Applying the dictum of the Supreme Court in Bangalore Medical Trust (supra), it must be held that the Authority cannot amend the plan under Section 13(1) so as to deprive the public of a public park. Not only the G.D.A. even the State Government cannot alter the plan under section 13(1) carries several limitations, Section 13(2) gives the State Government unlimited powers to make amendments in the plan of the nature specified in sub-section () or otherwise. The words "or otherwise" occurring in Section 13(2) cannot be interpreted to mean that the State Government has a right to alter the plan so as to enable the G.D.A. to use the open space, reserved for a park, for the purposes having no semblance of a park. In Bangalore Medical Trust (supra), the Supreme Court reiterated that once an open space is dedicated for a park that cannot be converted into any other purpose.
23. We, therefore, hold that under Section 13, neither the Authority nor can the State Government amend the plan in such a way so as to destroy its basic feature allowing the conversion of open spaces meant for public parks." (Emphasis Added)
97. Striking heavily against unauthorised construction, in M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Shahu and others, AIR 1999 SC 2468 it was said that Courts while implementing rule of law show no consideration to the builders or any other person responsible for unauthorised construction etc. Being illegal it cannot be compounded and has to be demolished. The judicial discretion which includes equitable extraordinary exercise of power would not include a discretion to be exercised to encourage illegality or something which would perpetuate illegality. Justice must 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 discretion. The Court clearly said:
"Judicial discretion whenever it is required to be exercised has to be in accordance with law and set legal principle."
98. Where the authorities are not performing their statutory functions indulging more in violation than maintenance of rule of law, overlooking, ignoring or omitting illegal activities of individuals, private or governmental, as the case may be by doing acts in violation of statutory plans, the Court finds its duty, constitutional and legal both, to cause such authorities to come to task and execute rule of law strictly by issuing a writ of mandamus.
99. In Mansukh Lal Vs. State of Gujarat, 1997(7)SCC 622, the Court said:
"Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature."
100. In the present case, how and in what manner KDA allowed use of land for the purpose it was not provided in Master Plan 1999 and who was the person responsible for the same, has not been made known but there is passing of bucks from one to another and ultimately every burden is placed on G.O. dated 18.11.1999.
101. When questioned, learned Additional Advocate General as also two learned Senior Counsels appearing for respondents-3 and 4 could not dispute that by an executive order permitting transfer of Nazul land to Development Authority, State Government had no authority on its own to compel a Development Authority to use such transferred land for the purpose, not permitted in existing and operating Master Plan.
102. Thus, things are self-speaking that powerful owners of respondent-4 found their interest to be taken care by members of family holding high political positions which impelled even the then political executive of State of U.P. to take an extra interest in the matter and things proceeded at a great pace where even the higher executive wing could do nothing except to find out ways to help respondent-4.
103. It is also strange to see when land was to be allocated by auction in private sector, how those who were pursuing the matter for the benefit of respondent-4 could be so sure that it would be allocated to respondent-4 and entire exercise was undertaken accordingly.
104. This matter needs a thorough probe and appropriate action against erring Officials but except a few petty Officials, no serious action has been taken on the ground that concerned files are missing.
105. All this demonstrate a patent illegal act on the part of a statutory body and its officials but except lodging FIR against erring petty Officials, no action at all, moreso nothing serious has been done though Violators have also committed an offence under U.P. Act, 1973. No attempt has been made to lodge any report for initiating criminal proceeding(s) against anybody. A system of mutual protection developed amongst the bureaucracy, in this case, has shown its reflection in its true colour. This has unfortunately caused a reason of sufferance to citizens who lacked might and resources to combat with the strength of State and its instrumentalities. Yet the courage and spirit of petitioner has taken the matter to this Court and that is how these things have been exposed.
106. The Development Authorities were constituted with an objective of coordinated development but the experience is that largely it has failed to achieve its objectives. The open areas in cities have been converted into jungles of concrete. The roads have turned into parking. One finds it very difficult to move conveniently even in the main commercial areas of cities. This kind of destruction and defacement is going on rampant even in the areas shown as residential. Commercial activities like coaching centres, nursing homes, banks, banquet halls etc. are running in those areas without any hindrance, causing a different kind of harassment to local residents. It is a common feature in all cities in State of U.P. wherever a development authority has been created including Kanpur. In different media reports these bottlenecks have been reported time and again but the authorities do not find time or occasion to wake up and come in action to rescue citizens by restoring conditions in conformity with Master Plans. Violations are causing an impact on the officials of Development Authorities, confining their individual development and contributing to under development of area concerned. One of the reason this Court would conceive of this situation is lack of transparency of actual individual development plan(s) submitted by individual contractors/builders etc. Those who want to raise construction, when their Plans/Maps etc. are approved by Development Authority, if disclose such approved Plan/Map to the people at large, the construction if made in violation of approved Plan, then the people at large would not find it difficult to raise their voice for want of appropriate information. Though under the Right to Information Act the people may go to seek information but here also all possible obstructions are created by authorities in providing these informations. The construction in deviation to approved Plan is considered to be a matter of right. Those making illegal construction/encroachment are confident of no complaint since common man has neither appropriate information nor resources in general to fight with such kind of persons and when detected, the violators find it their right to continue with it by asking for compounding. What kind of violation has been made and what is the stage of compounding is also not made known to public at large. This lack of information has also contributed a mushroom growth of illegal, unauthorised obstruction, construction, encroachment etc. all through changing ultimately the entire Plan to such an extent that one find it very difficult as to what was the actual Plan approved and what one has actually got executed, after passage of time.
107. Therefore, whenever a Plan is sanctioned, details must be placed to the notice of public by creating a Web Page by individual Development Authority giving all the details of such development and Plan approved so that whenever anyone come across any violation may bring appropriate action in the matter.
108. In the present case, a feeble argument was advanced that in Master Plan, 2021, which was approved in 2006, disputed land has been shown as Commercial and, therefore, at this stage, it cannot be said that there is a violation of approved Master Plan. The submission ignores the fact that the space shown as "Ayurvedic Garden" was for the benefit of citizens of Kanpur City, who have a problem of huge air pollution due to large number of industries. They were given an opportunity of getting clean air by developing huge area of disputed land as "Ayurvedic Garden". This purpose was defeated for the benefit of commercial gain of a Corporate individual like respondent-4. Construction of Multiplex Recreation Center in disputed land was completed in 2002 and was made operational. In Master Plan of 2021, what Development Authority has done is that disputed land has been shown in the manner, as it was in 2006, without there being any change in earlier Plan at any point of time. This is also nothing but an attempt to confer subsequent validity to the blatant illegal act done on the part of respondents by allowing disputed land to be used for commercial purposes without change of use of land in accordance with procedure prescribed in Statute and in utter violation of Master Plan approved and operating in 1999. Therefore, Master Plan of 2021, in our view, will not confer a validity on blatant illegal act of respondent-4 in respect of disputed land which has been converted wholly illegally in a Multiplex Commercial Complex.
109. We also reiterate that huge construction of Commercial Complex on disputed land made by respondent-4 may have resulted in investment of huge funds and any order of demolition would result in wastage of such investment but we can neither ignore nor forget that this Court is bound by its oath of upholding Rule of law. Any direction which may allow continuance of benefit of an illegal act will be nothing but a travesty of justice. We shall be failing in our constitutional duty of upholding Majesty of Law. Any such attempt would encourage people like respondent-4 to somehow or the other, get successful in getting a big construction complete, make it operational even if statutory mandatory provisions are violated to any extent, and thereafter go to purchase legality or validity by spending a few bucks. We have deliberately used the words "Few Bucks", inasmuch as, quantity of the amount cannot mitigate the effect of illegality committed in proceeding against law. Whether one is required to pay a few thousand rupees or few crores or hundred of crores of rupees but inference would be same that depending on degree, a rich and resourceful person can violate law with impunity and purchase validity after paying money but a poor person lacking funds has no option but to observe law or face punitive consequences. Such an approach would be discriminatory, has to be avoided and discarded without any hesitation.
110. Moreover, a message must go to the Society that persons who indulge in illegal activities of building constructions for their personal monetary gain and succeed in achieving their evil design with the aid of corrupt means and practices, even going to the extent of purchasing legality for covering their wholly illegal act, as in the present case, shall not be spared and would be dealt with severely; their illegal structure may be demolished at any stage whenever it comes to the notice of Court or for that matter, any other Competent Authority take cognizance of such violation.
111. As observed above, the facts of the present case amply justify a high level enquiry into the entire unfortunate episode by an independent agency. However, we leave it open to the system of State Government to proceed in this regard in accordance with law and take appropriate action against persons found guilty.
112. Thus, our unhesitant decision is that allotment of land in dispute to respondent-4 for development of a Commercial Complex i.e. Multiplex Recreation Center, in violation of the then existing Master Plan of 1970 and 1999 wherein disputed land was shown as "Ayurvedic Garden", was patently illegal. For reasons as discussed above, we also hold that entire constructions raised thereon and functioning of Multiplex Complex on disputed land by respondent-4 is wholly illegal and amounts to flagrant violation of law.
113. In the result, G.O. dated 18.11.1999, to the extent it directs KDA to allow transfer of land to Private Entrepreneurs for use of commercial land is illegal and to that extent, G.O. dated 18.11.1999 is hereby quashed. Consequently, transfer of land by KDA to respondent-4 is also illegal. We, therefore direct that construction raised on disputed land by respondent-4 shall be demolished forthwith without any further delay and, thereafter, KDA shall restore disputed land, as it was, at the time of its transfer. Expenses incurred in demolition and restoration of status of land, as it was at the time of transfer, shall be realized as penal compensation/damages from respondent-4.
114. The writ petition is allowed with costs which we quantify to Rs. 15,00,000/- (Rupees Fifteen Lacs), which shall be equally borne by State of U.P., KDA and respondent-4.
115. Liberty is granted to State and KDA to recover amount of cost payable under this judgment, from Officers found responsible for committing illegality of change of land use and construction of Multiplex Commercial Complex, in a wholly illegal manner, after making such enquiry as it deems fit and also to fix responsibility and liability upon such erring Officials by holding departmental enquiry as well.
Order Date :- 25.03.2019 Siddhant Sahu