Allahabad High Court
Ajai Narain Agarwal vs Additional District Magistrate (City) ... on 24 July, 2017
Bench: Tarun Agarwala, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition No.44822 of 2013 Ajai Narain Agarwal Vs Additional District Magistrate (City) Allahabad and others ************* Hon'ble Tarun Agarwala, J.
Hon'ble Prabhat Chandra Tripathi, J.
(Per: Tarun Agarwala, J.) Case of Petitioner:
1. The present writ petition has been filed for the quashing of the order dated 23.5.2013 passed by the Additional District Magistrate (City) Allahabad by which the authority recalled its earlier order dated 26.4.2011 by which it cancelled the registration granted to respondent no.3 under the Sarais Act, 1867.
2. The facts leading to the filing of the writ petition is, that respondent no.3 has a residential house on plot no.32, George Town, Allahabad and started constructions for running a marriage hall on the vacant land on the western side of his residential house in the name and style of Numani Garden Guest House.
3. The petitioner made a complaint on 20.8.2010 before the Additional District Magistrate (City) praying that respondent no.3 should be restrained from running a marriage hall. On this application, the Additional District Magistrate issued a notice dated 8.9.2010 to respondent no.3 to show cause as to why he was running a marriage hall without it being registered under the Sarais Act. Based on this notice, respondent no.3 filed an application dated 16.9.2010 before the District Magistrate for registration of his marriage hall in the name of Nomani Garden under the Sarais Act. When the petitioner came to know about the application being filed by respondent no.3, the petitioner filed an objection again contending that the running of the marriage house would cause noise pollution and other nuisances, specially contending violation of Rule 3(5) of the Noise Pollution (Regulation and Control) Rules, 2000.
4. Without considering and dealing with the objections, the Additional District Magistrate (City) passed an order dated 7.1.2011 registering the marriage house of respondent no.3 under the Sarais Act. According to the petitioner, this order was passed without affording any opportunity to the petitioner and without considering his objections.
5. On 30.1.2001, the marriage hall was used for a wedding and all the nuisances as feared by the petitioner came true. There was loud music, which continued till the wee hours of the morning. The road was used for parking of vehicles, which led to congestion and traffic jams. The petitioner protested and made a complaint to the authority and also lodged a first information report on 2.2.2011. An objection dated 31.1.2011 was filed before the Additional District Magistrate for the cancellation of the registration. Based on this complaint, the Additional District Magistrate again issued a notice to respondent no.3 to show cause as to why the registration should not be cancelled for violating the terms and conditions of the registration certificate. The authority, after due consideration, issued an order dated 26.4.2011 cancelling the registration granted under the Sarais Act on the ground that the marriage hall was in the residential area and that land use had not been changed. Further, the terms and conditions of the registration certificate was violated with impunity.
6. Respondent no.3, being aggrieved by the decision of the Additional District Magistrate, filed writ petition No.25679 of 2011, which was dismissed as withdrawn by an order dated 27.5.2011 on the pretext of availing an alternative remedy. Thereafter, respondent no.3 filed a review application on 18.8.2011 for recall of the cancellation order dated 26.4.2011, which review application was rejected by the authority by its order dated 24.10.2011. The respondent no.3 did not question the order and consequently the cancellation order dated 26.4.2011 and the order passed on the review application dated 24.10.2011 became final.
7. After six months, respondent no.3 approached the State Minister, Sri Azam Khan. On this representation, a recommendation was also made by a local member of the Legislative Assembly. The Minister directed the District Magistrate to reconsider the matter. Based on the directions given by the Minister, the matter was reopened. The District Magistrate called for a report from the Allahabad Development Authority, who submitted a report dated 16.5.2013 indicating that the plot in which the marriage hall is located has an area of 1500 squares metre and is located on a 24 metre wide road. The report also indicated that there are temporary and permanent structure existing on the said plot and that parking facility was also available. On the basis of this report, the District Magistrate by an order dated 21.5.2013 directed the Additional District Magistrate (City) to restore the registration. Accordingly, the Additional District Magistrate passed the impugned order dated 23.5.2013 and recalled its earlier order dated 26.4.2011. The Additional District Magistrate directed that respondent no.3 will not do any act which would be in violation of the Master Plan. Further, respondent no.3 will take a no objection certificate from the Fire Department and that there would be no broadcast of sound/music. Respondent no.3 was further directed to ensure that no vehicle was parked outside nor cause any impediment in the free flow of the traffic. Respondent no.3 was also directed to ensure that all vehicles are parked inside the premises and that food and other articles are not thrown on the streets. The petitioner, being aggrieved by the impugned order, has filed the present writ petition.
Contention of Petitioner:
8. The contention of the petitioner is, that there is no provision under the Sarais Act to review an order passed under the Act and consequently, the impugned order passed on the second review application is patently illegal and without jurisdiction. Further, assuming without admitting that a review application could be filed, it was contended that, in any case, the second review application was not maintainable. The learned counsel further contended that, in any case, the registration was cancelled on the objection raised by the petitioner and, therefore, it was necessary for the authority to give an opportunity of hearing to the petitioner and consider his objection before the impugned order was passed. In the instant case, no opportunity of hearing was provided by the authority and the entire proceeding was conducted exparte without issuing any notice and without giving any opportunity to the petitioner.
9. The learned counsel further contended that the impugned order was passed under political pressure exerted by the Minister representing the State Government at that moment of time. There was no application of mind by the authority. The learned counsel further contended that the sanction given by the authority under the Sarais Act was wholly illegal inasmuch as that no marriage hall could be registered under the Sarais Act. It was also contended that the land use was changed and the running of the marriage hall was in direct conflict with the master plan. The learned counsel further contended that even for running a marriage hall it was essential for the respondents to take necessary sanction from the Development Authority, which in the instant case was the Allahabad Development Authority. It was contended that no permission was obtained for construction of any building, whether temporary or permanent, from the Allahabad Development Authority. The learned counsel further contended that the running of the marriage hall was in total violation of the Bhawan Nirman Evam Vikas Upvidhi, 2012 (hereinafter referred to as the Upvidhi of 2012).
Stand of Additional District Magistrate and District Magistrate, Respondent nos.1 and 2:
10. The Additional District Magistrate (City) Allahabad has filed a counter affidavit and a supplementary counter affidavit contending that under Section 13 of the Sarais Act there is a provision to make Regulations for better attainment of the objects of the Act, but, no such Regulations has been framed till date. Considering the need of the residents of the city and to remove the congestion of use of roadside and public roads for marriage purposes.
11. The Department of Housing and Urban Development Government of U.P. issued an "Adarsh Zone Regulations 2002" (hereinafter referred to as the Regulations of 2002) for guidance to the Development Authorities in permitting permissible land development activities in different zones of the Master Plan and introduced the concept of "floating zones" of the land in the specified developed zones, in view of the constant change in the physical, social, financial and political scenario of the society. This Regulations of 2002 categorised different land use under different heads and laid down the norms for permissible and impermissible of particular land development activity in different zones.
12. Under this Regulations of 2002, the construction of a marriage hall was displayed under the heading of "public and semi-public utility/facility". The Regulations of 2002 contemplated that the marriage hall is not a commercial activity but is an activity coming under the category of public and semi-public utility. Based on the Regulations of 2002, the State Government issued a Government Order dated 28.11.2002 specifying the parameters for constructing a marriage hall in different earmarked zones of the Master Plan. The Government Order dated 28.11.2002 provided that marriage hall is a public utility services, the construction of which is permissible in a residential as well as commercial zones. The Government Order also indicated that necessary sanction for construction of a marriage hall shall be granted by the Development Authority under the floating use concept, after charging an impact fee as determined under the Regulations of 2002 and that there shall be no requirement of change of the land use. This Regulations of 2002 continued till it was replaced by the Upvidhi of 2012, which was framed in exercise of the powers conferred under Section 56 of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the Act of 1973). In this Upvidhi of 2012, the Government Order dated 28.11.2002 was primarily adopted and criteria was fixed for establishing marriage halls. Under this Upvidhi of 2012, the competent authority was the Allahabad Development Authority for sanctioning such constructions. It was contended that in the city of Allahabad there are 86 marriage halls out of which 82 were functional and all these marriage halls are located in the residential area. The authority further contended that there was no requirement of giving an opportunity of hearing while considering the review application of respondent no.3. It was further contended that the running of the marriage hall by respondent no.3 was not in violation of the Master Plan and that an affidavit was filed by respondent no.3 in accordance with the conditions prescribed in the Upvidhi of 2012. It was further contended that prior to registration of any marriage hall, no objection certificate is required from the Fire Department, Nagar Nigam, Police and Revenue Department.
Stand of Respondent No.3:
13. The learned counsel for respondent no.3 contended that the writ petition was not maintainable and that it was a devious device by the petitioner to stop the business of the petitioner for vested reasons. It was contended that the nephew of the petitioner was running a marriage hall in a portion of the land of the petitioner by the name of Laxmi Narayan Vatika and, therefore, it was no longer open to the petitioner to point fingers at respondent no.3 for running a marriage hall. It was further contended that petitioner no.2 is not a resident of Allahabad and is a permanent resident of Kanpur and that he is the brother of a retired Judge of the High Court who alone is residing in the adjoining premises. It was contended that the present petition is nothing but a proxy litigation on behalf of an ex-Judge of the High Court, who exerted pressure upon the district administration, on the basis of which the license was cancelled, but, was validly restored when directed by the State Minister. The learned counsel submitted that the petitioner had no locus standi to file the present writ petition. It was further contended that the application filed by the respondent was not a review application, but, was only a representation on which action was taken by the authorities.
14. It was further contended that the registration was granted in accordance with the provisions of the Sarais Act read with the Upvidhi of 2012 and that there is no provision for filing objection by the petitioner nor there is any provision for giving him an opportunity of hearing.
15. The learned counsel also contended that if a marriage hall is being run in an existing structure, it was obligatory for the Development Authority to evaluate whether such existing structure or building was as per the specified standard as provided under the Upvidhi of 2012. If the structure was not as per the specified norms as provided in the Upvidhi of 2012, then it was obligatory for the authority to exercise their powers under Sections 26, 27 or 28-A of the Act of 1973. The respondent contended that in the instant case, no action had ever been initiated by the Development Authority till date for violation of any norms and conditions of the Upvidhi of 2012 or any of the provisions of the Act of 1973.
Stand of Allahabad Development Authority, Respondent No.5:
16. The Allahabad Development Authority has also filed a counter affidavit contending that the activity of the marriage hall as specified in the Master Plan of 2021 comes within the category of public and semi-public services. It was contended that the activity does not fall within the category of "commercial" and consequently a marriage hall function in a residential area but only after seeking special permission and fulfilling the conditions laid down under the Master Plan of 2021 and after payment of impact fee in accordance with the Upvidhi of 2012. It was contended that it was not necessary to change the use of the land for running a marriage hall. The development authority contended that in order to run a marriage hall in accordance with the provisions of the Master Plan and the Upvidhi of 2012, it was essential for a person to get necessary sanction of a building plan whether temporary or permanent from the authority concerned under the Act of 1973. It was contended that the action of the respondents was wholly illegal and in violation of the Act of 1973. In this regard a demolition order under Section 27 of the Act of 1973 was passed by the authority on 9.11.2010. The authority further contended that as on date there are 167 marriage halls operating in the city of Allahabad and that notices have been sent to all to get sanction as per the Upvidhi of 2012.
17. We have heard Sri Manu Khare and Sri B.K.Srivastava, learned counsel for the petitioner, Sri Sanjay Goswami, learned standing counsel for respondent nos.1, 2 and 4, Sri P.K.Singh, learned counsel for respondent no.3 and Sri A.K.Singh, the learned counsel for respondent no.5.
Issues:
18. Various issues have been raised at the Bar, which requires consideration.
Need for a Marriage Hall:
19. Weddings were a simple affair about three decades back. Weddings used to take place in the courtyard of the house which was attended by family members and a few invitees. With the economic liberalisation and the rise of the middle class there has been a change in the concept of holding a wedding. Simple wedding became a grand affair. People started spending a lot of money on weddings and, eventually, it has now come down to hiring a professional wedding planner for organising a big wedding. The conventional wedding has now converted into a destination wedding and wedding planners are being engaged to organise a hassle free event. Even though wedding in the Indian social context, is once in a life time event for most people in India, nonetheless, there has been a rapid growth on account of rising affluence and a desire to make the wedding a memory with a difference.
20. Previously a simple wedding was organised in the courtyard of a house by calling few relatives and friends, but, with liberalisation and the rise in the middle class, the wedding shifted from the courtyard of the house to the parks in the neighbourhood. At times roadsides was used for hosting a marriage. Large numbers of guests were invited. With little or no place for parking, guests were parking their cars on the streets, which eventually led to traffic congestion.
21. Hosting weddings became a stable business. Farm house marriages became vogue and in demand. Over the years bungalows with huge lawns were converted into a small residential houses. As a result, it was not possible to hold a wedding inside the house as there was no space. Thus there came a need to hire a hall for hosting a marriage function. This led to the construction of marriage halls in the city and, in the last 30 years, marriage halls came up like mushrooms in every nook and corner of the city in a haphazard manner. The marriage halls came up in the commercial areas as well as in the residential areas. There was no provision for regulating the activity of a marriage hall by the development authority. No norms, conditions were made for running a marriage hall, so much so, that no provision was made for taking a licence either by the district administration or by the Nagar Nigam or by the Development Authority. This resulted in the chaotic growth of marriage halls.
Government Order dated 28.11.2002:
22. The Development Authority made no provision in the Master Plan for demarcating any area, either in residential area or in the commercial area for marriage halls. The Government, considering the need of the society for marriage halls and considering the haphazard growth of the marriage halls, issued the Regulations of 2002 permitting development activities in earmarked zones in the Master Plan. Marriage hall was displayed as a developmental activity relating to "public and semi-public utility" service . Based on this Regulations of 2002, the State Government issued a Government Order dated 28.11.2002 imposing certain terms and conditions for construction of a marriage hall in specified areas of the Master Plan. This Government Order was issued because the Government realised that the public were using the parks and roads for hosting marriages and that free flow of the traffic was being obstructed and causing inconvenience to the public at large.
23. The Government order dated 28.11.2002 directed the Development Authorities to identify places for construction of marriage halls. The Government Order further stipulated that a marriage hall could be located in a residential area, which has a minimum area of 1500 square metres and was located on a 18 metre road and that the premises should have a frontage of 24 metres. It was also indicated that permission for construction of a marriage hall in a residential area would only be granted after considering the objection/suggestion from the residents of that area and upon payment of impact fee. Inspite of this Government Order the same was never implemented in the right earnest by the development authorities and by the administration. As a result, the marriage halls violated all norms and conditions with impunity.
Master plan 2021 and Bhawan Nirman and Vikas Upvidhi 2012:
24. The Development Authority came out with a new Master Plan of 2021, under the Act of 1973. Under this Master Plan, the activity of marriage halls has been placed under the category of "public or semi-public services" and, consequently, does not fall under the category of "commercial activity". Under the Master Plan marriage halls could come up in a residential area subject to fulfillment of certain terms and conditions.
25. Based on the earmarking of the marriage halls under the Master Plan 2021, the State Government, in exercise of the powers conferred under Section 56 of the Act of 1973 issued a "Bhawan Nirman and Vikas Upvidhi 2012", in which a provision was made for establishing a marriage hall wherein the Allahabad Development Authority was made the competent authority to regulate such construction. Under this Upvidhi, the Government Order of 2002 was more or less incorporated with certain modifications. The conditions laid down is, that the marriage is required to be registered under the Sarais Act. The construction of a marriage hall has to be sanctioned by the Development Authority, which in the instant case is the Allahabad Development Authority. Under this Upvidhi of 2012 permission to run a marriage hall could be granted in a residential area. The Development Authority is required to evaluate the proposed construction on the basis of the norms specified under the Upvidhi and thereafter grant or refuse such construction plan under the Act of 1973. In the event, an existing structure or building is being converted into a marriage hall even then it was obligatory for the Development Authority to evaluate whether such existing structure satisfies the specified norms as provided in the Upvidhi of 2012 and if it does not, in that event, the development authority would exercise their powers under the Act of 1973 for taking penal action for running such marriage halls.
26. Admittedly, in the instant case, respondent no.3 is running a marriage hall in a residential area. It was urged that running a marriage hall is a business activity and, therefore, commercial in nature and such commercial business cannot be allowed to be conducted in a residential area. It was contended that the land use is residential, which use is being violated inasmuch as running a marriage hall is a commercial venture thus violating the terms and conditions of the lease deed. The contention of the petitioner is that such commercial activity cannot be allowed in a residential area.
27. The Regulations of 2002 had earmarked the activity of marriage hall under public and semi-public utility service and not as a commercial activity. Based on this Regulations, the State Government issued a Government Order on 28.11.2002 permitting construction of marriage halls in specified zones. Subsequently, the Master Plan of 2021 has also earmarked the marriage halls as an activity coming under the category of public or semi-public services, which does not fall in the category of commercial activity. In the light of the categorisation made under the Master Plan, the Court is of the opinion that such activity can be done in a residential area, which will not violate the terms and conditions of the lease-deed. However, such activity of running a marriage hall is subject to the terms and conditions provided in the Upvidhi of 2012, which is mandatorily required to be followed.
Registration Under Sarais Act, 1867:
28. The purpose of registration under the Sarais Act is to regulate the haphazard growth of the marriage halls which were coming up in every corner of the city with impunity. The underlying idea is that a person would not be allowed to run a marriage hall unless the district authority registers the marriage hall for such activity. Admittedly no regulations have been framed under the Sarais Act for the purpose as to how a marriage hall is required to be registered, but as per the instructions issued by the district administration from time to time and as per their affidavit, it is apparently clear that a person running a marriage hall is required to obtain a sanction from the Allahabad Development Authority, and no objection certificate from the Fire Department, Nagar Nigam, Police and Revenue Department.
Maintainability of Writ Petition:
29. It was urged that the writ petition is not maintainable contending that the petitioner is a permanent resident of Kanpur and has nothing to do with the alleged nuisance, if any, being created by respondent no.3, as he is not residing at the premises indicated in the writ petition. It was urged that it was a proxy litigation on behalf of a retired Judge. In this regard, the Court finds that respondent no.3 has not denied that he is a co-owner of the premises, which is adjoining the premises of respondent no.3. Once this fact is clear that he is a co-owner, he has the locus standi to question the activity of respondent no.3, if such activity is creating a nuisance and is violating the terms and conditions of the Act of 1973, the Sarais Act and the Upvidhi of 2012. The mere fact that one of the co-owners is the retired Judge of the High Court, does not mean and cannot mean that such grievances cannot be raised in a writ jurisdiction. Every citizen has a right to approach the Court if he is aggrieved by an action or inaction by the authority. If a citizen is unable to enjoy the property he can pray for an issuance of a writ. We, accordingly, are of the opinion that the contention of respondent no.3 that the writ petition is not maintainable and is only a proxy litigation, is misconceived and is rejected.
Undue Pressure:
30. Allegations of exerting pressure by an ex-Judge of this Court has been raised by respondent no.3. On the other hand, it has come on record that respondent no.3 used political pressure from the Minister of the State Government in getting the impugned order passed. Though such allegations were unnecessary and should not have been raised, but, the learned counsel for the respondent no.3 insisted and took every opportunity to raise such issues at the time of the arguments for vested reasons either to create an embarrassment to the Court or to gain political mileage. Since much emphasis was made by respondent no.3, the Court finds that it becomes essential to answer this issue, less the grievance would always remain with respondent no.3.
31. It was urged that the petitioner has no grievance as he was not residing at the premises in question and only an ex-Judge was residing who exerted his authority in getting the registration under the Sarais Act cancelled. It was urged that the grant of registration under the Sarais Act was a matter between respondent no.3 and the authority and that the petitioner or his brother had no locus standi to raise any objection. It was alleged that the brother of the petitioner used his influence to get the registration cancelled. This assertion, in our opinion, is patently erroneous and bereft of any merit. There is not an iota of evidence brought on record to indicate that any kind of pressure or influence was exerted by an ex-Judge of this Court upon the administration in cancelling the registration. The petitioner had a locus as well as a right to object to the grant of the registration under the Sarais Act and after the grant when the terms and conditions of the registration certificate was violated with impunity, the petitioner had every right to object and pray for cancellation of the registration.
32. On the other hand, the Court finds that after the cancellation of the registration certificate by the authority, respondent no.3 initially took a legal recourse by filing a writ petition, in which an interim order was granted by the Court, but, subsequently respondent no.3 withdrew the writ petition to enable him to approach the authority, based on which a review application was filed, which was rejected by the authority and the matter came to an end thereafter. After the expiry of six months, the record reveals that a recommendation was obtained by respondent no.3 from a powerful State Minister as well as from a local Member of Legislative Assembly. Based on the recommendation from the Minister, the matter was reopened on the second review application of respondent no.3. When no action was being taken on the second review application, the State Minister again writes to the authority directing him to pass orders and not to make it a prestigious issue. On this basis, the order of cancellation was recalled without giving opportunity to the petitioner.
33. From the evidence that has been brought on record, it is apparently clear that there is no evidence filed by respondent no.3 to indicate that the brother of the petitioner exerted any kind of influence upon the administration. On the other hand, there is sufficient material to indicate that the impugned order has been passed at the behest of the politicians, upon pressure being exerted by them.
34. Respondent no.3 asserted that the petitioner was also running a marriage hall in its premises under the name of Lakshmi Narain Vatika. This allegation has been vehemently refuted by the petitioner. The petitioner contended that there has been a partition in the family and a portion of the land has gone in the name of his nephew, who is is running this marriage hall. The petitioner nor his brother has anything to do with the running of this business. It has also been stated that partition suit has been filed, which is being contested between the parties before the Civil Court. These facts have not been refuted by respondent no.3 nor any evidence has come before the Court to indicate that these facts are incorrect. Further, nothing has been brought on record to indicate that any resident made a complaint about the running of this marriage hall by the nephew of the petitioner, which was in violation of the Government Order of 2012 or under the Act of 1973.
Review:
35. It was contended that no review application lies as there is no provision under the Sarais Act for filing a review application. It was also contended that in any case a second review application cannot be filed. On the other hand, it was contended that there is always an inherent power of the authority to review its order and that the second application was not a review application, but was a representation for reconsideration of the matter, which was permissible in law.
36. On this issue, the Court is of the opinion that it is a settled legal proposition that unless the statute permits a review application, the same is not maintainable. In the absence of any provision in the Act granting an express power of review application, no review could be made and any order passed on the review application, if passed, is illegal and without jurisdiction. The Supreme Court has reiterated this proposition in a catena of decisions and, in Kalabharati Advertising vs. Hemant Vimalnath Narichania and others, 2010(9)SCC 437 the Supreme Court held that in the absence of any provision under an Act or the Rules, a review of an earlier order was impermissible as review is the creation of the statute and that jurisdiction of review can only be derived from a statute and not otherwise. The Supreme Court further held that in the absence of any statutory provision provided for review, entertaining an application for review or under the garb of clarification/modification/correction was not permissible.
37. In the light of the aforesaid, we are of the opinion that a review application was rejected by the authority on 24.10.2011, it was no longer open to the authority to reconsider the matter again. It is also a settled principle of law that a second review application is not maintainable and the principle contemplated under Order 48 Rule 9 of the C.P.C. would be fully applicable. No second review application can be entertained. The submission of the respondent that the second application was not a review application, but was a representation, is patently erroneous. The nomenclature of the application can be a representation or a second review application but, it remains the same. The fact remains that a finality has to be achieved and once a review application has been entertained and thereafter rejected, a second application for reconsideration of the earlier order cannot be entertained. The authority had no jurisdiction to entertain a second application on the same subject nor had any power to reconsider a matter, which had become final and closed. The impugned order passed by the authority under political pressure was wholly illegal.
Opportunity of hearing:
38. In the instant case, the impugned order was passed without giving an opportunity of hearing to the petitioner. The petitioner contends that he had a vested right and was required to be given a notice and an opportunity of hearing before passing of the impugned order. Since the same was not given, it was violative of the principles of natural justice as embodied under Article 14 of the Constitution of India. On the other hand, the stand of the authority as well as of the private respondent no.3 is, that there is no requirement to give a notice or opportunity of hearing to the petitioner.
39. On this issue, we find that the Government Order of 2002 as well as the Upvidhi of 2012 clearly stipulates that while considering the application for running a marriage hall, the authority is required to consider the objections of the residents of that area. In the instant case, an objection was raised by the petitioner right from its very inception and, therefore, the Court is of the opinion that a notice or opportunity of hearing was required to be given to the petitioner before passing the impugned order.
40. There is another aspect of the matter. The Registration certificate was cancelled on an objection being raised by the petitioner. On the basis of the objection raised, necessary inquiry was made and thereafter the registration certificate was cancelled. Thus, it becomes essential for the authority that while reconsidering the matter it was imperative to consider the objection of the petitioner. Such objection could only be considered if the petitioner was provided a notice and an opportunity of hearing, which in the instant case was lacking. The Court is thus, of the opinion, that the impugned order suffers from the principles of natural justice. Since no opportunity of hearing was provided to the petitioner, the impugned order cannot be sustained.
Sanction of plan under the Act of 1973:
41. Much has been stressed by respondent no.3 that no sanction is required from the Allahabad Development Authority for construction of a marriage hall where structures have been raised on a temporary basis. The contention of respondent no.3 is, that the marriage hall was running on a structure, which was existing earlier and the existing structure was converted into the marriage hall. Further, temporary structure so raised does not involve development of land in a developed area for which no permission or sanction is required from the Development Authority under the Act of 1973.
42. The Development Authority, on the other hand, has clearly opined that it is essential for the person running a marriage hall to obtain a sanction of the plan of the structure for running a marriage hall, whether the construction raised is permanent or temporary in nature. It has been categorically stated by the Development Authority that no such permission was taken and in fact the authority had issued an order dated 9.11.2010 for demolition of the structure under Section 27 of the Act.
43. On this aspect, the Court finds that Chapter 16.1 of the Upvidhi of 2012 requires that the map of the marriage hall can only be sanctioned in accordance with the Master Plan.
44. Section 14 of the Act of 1973, provides that no development of land shall be under taken unless permission for such development is obtained in writing from the authority. For facility, Section 14 of the Act of 1973 is extracted hereunder:
"14. Development of land in the developed area.-
(1) After the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government) unless permission for such development has been obtained in writing from the [Vice-Chairman] in accordance with the provisions of this Act.
(2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such development is also in accordance with such plans.
(3) Notwithstanding anything contained in Sub-sections (1) and (2), the following provisions shall apply in relation to development of land by any department of any State Government or the Central Government or any local authority-
(a) when any such department or local authority intends to carry out any development of land it shall inform the [Vice Chairman] in writing of its intention to do so, giving full particulars thereof, including any plans and documents, at least 30 days before undertaking such development;
(b) in the case of a department of any State Government or the Central Government, if the [Vice-Chairman] has no objections it should inform such department of the same within three weeks from the date of receipt by it under Clause (a) of the department's intention, and if the [Vice-Chairman] does not make any objection within the said period the department shall be free to carry out the proposed development;
(c) where the [Vice-Chairman] raises any objection to the proposed development on the ground that the development is not in conformity with any Master Plan or Zonal Development Plan prepared or intended to be prepared by it, or on any other ground, such department or the local authority, as the case be, shall-
(i) either make necessary modifications in the proposal for development to meet the objections raised by the [Vice-Chairman]; or
(ii) submit the proposals for development together with the objections raised by the [Vice-Chairman] to the State Government for decision under Clause (d);
(d) the State Government, on receipt of proposals for development together with the objections of the [Vice-Chairman], may either approve the proposals with or without modifications or direct the department or the local authority, as the case may be, to make such modifications as proposed by the Government and the decision of the State Government shall be final;
(e) the development of any land begun by any such department or subject to the provisions of Section 59 by any such local authority before the declaration referred to in sub-section (1) may be completed by that department or local authority with compliance with the requirement of sub-sections (1) and (2).
45. Permission for such development can be granted upon an application being made under Section 15 and after due enquiry by the authority. For facility, Section 15 of the Act of 1973 is extracted hereunder:
" 15. Application for permission.-
(1) Every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in writing to the [Vice-Chairman] in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by [bye-laws].
(2) Every application under sub-section (1) shall be accompanied by such fee as may be prescribed by rules.
[(2-A) The Authority shall be entitled to levy development fees mutation charges, stacking fees and water fees in such manner and at such rates as may be prescribed:
Provided that the amount of stacking fees levied in respect of an area which is not being developed or has not been developed, by the Authority, shall be transferred to the local authority within whose local limits such area is situated.] (3) On the receipt of an application for permission under sub-section (1), the [Vice-Chairman] after making such inquiry as it considers necessary in relation to any matter specified in clause (d) of sub-section (2) of Section 9 or in relation to any other matter, shall, by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission:
Provided that before making an order refusing such permission, the applicant shall be given a reasonable opportunity to show cause why the permission should not be refused:
Provided further that the (Vice-chairman) may before passing any order on such application give an opportunity to the applicant to make any correction therein or to supply any further particulars or documents or to make good any deficiency in the requisite fee with a view to bringing it in conformity with, the relevant rules or regulations:
[Provided also that before granting permission, referred to in Section 14, the Vice-Chairman may get the fees and the charges levied under sub-section (2-A) deposited;] (4) Where permission is refused, the grounds of such refusal shall be recorded in writing and communicated to the applicant.
(5) Any person aggrieved by an order under sub-section (4) may appeal to the [Chairman] against that order within thirty days from the communication thereof and may after giving an opportunity of hearing to the appellant and, if necessary, also to the representative of the [Vice-Chairman] either dismiss the appeal or direct the [Chairman] to grant the permission applied for with such modifications, or subject to such conditions, if any, as may be specified.
(6) The [Vice-Chairman] shall keep in such form as may be prescribed by regulations a register of applications for permission under this section.
The said register shall contain such particulars, including information as to the manner in which applications for permission have been dealt with, as may be prescribed by regulations, and shall be available for inspection by any member of the public at all reasonable hours on payment of such fee not exceeding rupees five as may be prescribed by regulations.
(8) Where permission is refused under this section, the applicant or any person claiming through him shall not be entitled to get refund of the fee paid on the application for permission but the [Vice-Chairman] may, on an application for refund being made within three months of the communication of the grounds of the refusal under sub-section (4) direct refund of such portion of the fee as it may deem proper in the circumstances of the case.
[(9) If at any time after the permission has been granted under sub-section (3), the Vice-Chairman is satisfied that such permission was granted in consequence of any material misrepresentation made or any fraudulent statement or information furnished, he may cancel such permission, for reasons to be recorded in writing and any work done thereunder shall be deemed to have been done without such permission):
Provided that a permission shall not be cancelled without affording to the person or body concerned a reasonable opportunity of being heard.]"
46. Development of land has been defined under Section 2(e) of the Act of 1973. For facility, the same is extracted hereunder:
"development' with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development:"
47. The definition of the word "development" means the carrying out of building or making of any material change in any building or land.
48. Section 2(b) of the Act of 1973 defines "building" as under:
"building" includes any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes whether in actual use or not;"
49. The definition of building does not make any distinction between permanent or temporary structure. The Development Authority in their supplementary counter affidavit specifically stated that permission is required whether the construction is temporary or permanent. Further, under Section 15 of the Act it is incumbent upon respondent no.3 to apply in writing for sanction of running a marriage hall for which purpose a map is required to be submitted. Section 26-C of the Act of 1973 provides that construction so raised whether permanent or temporary could be demolished, which has been raised contrary to the provisions of the Act.
50. The Upvidhi of 2012 contemplates that a person who wants to run a marriage hall is required to obtain a sanction from the Development Authority and maps are required to be sanctioned. The Upvidhi of 2012 clearly indicates that even where a marriage hall is to be run on an existing structure, nonetheless, the person is required to apply and the authority is required to inspect and satisfy as to whether the marriage hall could be run in the existing structure on the terms and conditions specified in the Upvidhi.
51. Section 14 of the Act of 1973 read with Sections 2(e) and 2(b) makes it apparently clear that if any kind of structure is raised whether temporary or permanent, the same becomes a building and amounts to development of land and consequently permission is required from an authority under Section 15 of the said Act.
52. In the instant case, we find that admittedly respondent no.3 had never applied for sanction of a marriage hall from the Development Authority. No map has been sanctioned by the authority. Respondent no.3 was running a marriage hall in gross violation of the Master Plan and the terms and conditions mentioned in the Upvidhi of 2012 as well as Sections 14 and 15 of the Act of 1973. Respondent no.3 was running a marriage hall without any sanctioned plan from the competent authority under the Act of 1973. In the absence of any sanctioned plan, the competent authority under the Sarais Act was not empowered to register a marriage hall in favour of respondent no.3.
53. The basis for passing the impugned order by the authority was on a report of the Allahabad Development Authority dated 16.5.2013. This report is patently illegal and against the Upvidhi of 2012 and the Act of 1973. The Allahabad Development Authority in their counter affidavit clearly admitted that the report dated 16.5.2013 was submitted on the basis of possibility and not on the basis of record. The Court gets an uncanny feeling that the report dated 16.5.2013 given by the Allahabad Development Authority was procured by the administration in order to give relief to respondent no.3. It is also strange that while granting registration the authority directed respondent no.3 to give an affidavit that he would comply with the terms and conditions of the Upvidhi. Such affidavit is not sufficient and will not serve the purpose, inasmuch as, the respondent no.3 is first required to apply for necessary sanction for construction of a building of a marriage hall under the Upvidhi of 2012 read with Section 14 of the Act of 1973. Only after sanction is granted under Section 15 of the Act of 1973 that formalities of granting a registration under the Sarais Act could be given and not before that. In the instant case respondent no.3 never applied for a sanction plan under Section 14 and, consequently, in the absence of a sanction plan the marriage hall could not be registered under the Sarais Act.
Conclusion:
54. In the light of the aforesaid, we are of the opinion, that the impugned order dated 23.5.2013 recalling its earlier order dated 26.4.2011 by which the authority had cancelled the registration certificate of respondent no.3 under the Sarais Act; was wholly illegal and is quashed.
55. The writ petition is allowed with the observation that it would be open to respondent no.3 to apply for a sanction of a marriage hall from the competent authority under the Act of 1973 and only after sanction is granted by the competent authority a fresh application can be filed by respondent no.3 before the competent authority under the Sarais Act for registration of the marriage hall under the said Act. If such an application is filed, the authority under the Act of 1973 will consider the application as per the terms and conditions provided in the Upvidhi of 2012 and the Master Plan as well as in accordance with the Act of 1973. While considering the application, objection from the petitioner or from other residents of area would also be considered. Similarly, the authority under the Sarais Act is duty bound to consider the objections from the residents of the area before granting the registration.
56. In the circumstances, the parties shall bear their own costs.
Date:- 24.7.2017
AKJ
(Prabhat Chandra Tripathi, J.) (Tarun Agarwala, J.)