Allahabad High Court
Syed Madadgar Husain Rizvi Son Of Late ... vs State Of Uttar Pradesh Through Its ... on 18 August, 2007
Equivalent citations: 2008(1)AWC446
Author: B.S. Chauhan
Bench: B.S. Chauhan, Rakesh Sharma
JUDGMENT
B.S. Chauhan, J
1. The petitioner No. 1, who is the landlord of the land situate at X-9, Civil Station, Sardar Patel Marg, Allahabad and petitioner No. 2, a builder and developer of the building raised on the said site, have approached this Court assailing the order dated 18.05.2007 passed by the Vice Chairman, Allahabad Development Authority, Allahabad (hereinafter called the 'Development Authority') rejecting the application for compounding of unauthorised constructions raised against the sanctioned map/plan over the plot in dispute and issuing a direction to the Zonal Officer under the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter called the 'Act 1973') to take appropriate action against the , petitioners.
2. The petitioner No. 1, owner of the aforesaid plot, i.e. X-9, Civil Station, Sardar Patel Marg, Allahabad, entered into a builder's agreement with M/s. -Tulslanf Construction & Developers Limited on 15.06.2004 for construction of a commercial-cum-residential complex at the said site. A building plan for construction of commercial-cum-residential complex was sanctioned by the., Development Authority on 13.07.2004. It appears from the record that the petitioners raised unauthorised constructions over the said plot as the setback and-parking area in the building are not in conformity with the sanctioned plan. The Development Authority issued notices under Sections 27/28 of the Act 1973 and they were asked to stop the construction work and were called upon to show cause before the appropriate authority. A revised plan seeking compounding of deviations from the original sanctioned plan/map was submitted by the petitioners before the Development Authority on 20.02.2006.
3. Here, it may be pertinent to mention that while hearing a Public Interest Litigation this Court in Writ Petition No. 2547 of 2005, Anand Mohan v. Union of India and Ors., on 6th March, 2006, passed a general order restraining the Development Authority from compounding constructions raised in deviation of the sanctioned plan. In between, a draft Master Plan for Allahabad had been submitted by the Authority, for approval before the Governor of the State of U.P., which stood approved vide order dated 12.07.2006 with immediate effect and the said new Master Plan is known as "Master Plan - 2021".
4. Application dated 20.02.2006 for compounding of the unauthorised constructions was rejected by the Vice Chairman of the Development Authority on 29.06.2006 and an order for demolishing the unauthorised and illegal construction was also issued on 03.07.2006. However, the order passed by this Court on 06.03.2006 was modified on 3rd August, 2006 and the ban was lifted vide order dated 3rd August, 2006.
5. While entertaining an application filed by the present petitioners in the same Public Interest Litigation, this Court vide order dated 17.10.2006 directed the Development Authority to consider the representation submitted by the petitioners for compounding the unauthorised constructions. Petitioners submitted their application along with a revised map on 14.11.2006 seeking compounding of the, unauthorised constructions. Petitioners subsequently filed another application In $1e said Public Interest Litigation complaining that in spite of the order of this Court dated 17.10.2006, applications were not being considered and decided. This Court on 8th March, 2007 directed the Development Authority to decide It and communicate the order to the petitioners. Immediately thereafter, the petitioners received notice dated 09.03.2007 informing them that they had not acted upon the direction of the authorities for providing parking place as directed earlier and that their requests for compounding and approving the revised plan had already been rejected and order of demolition had already been passed on 30.07.2006. Further approaches were made by submitting applications and placing revised maps. Petitioners also filed Writ Petition No. 19486 of 2007, Shri Syed Madadgar Husain Rizvi and Anr. v. State of U.P. and Ors. challenging the said order rejecting the application for compounding. The said writ petition was disposed vide judgment and order dated 16.04.2007 in view of the statement made by Shri Navin Sinha, learned Senior Counsel appearing for the respondent Development Authority that it had taken a decision to reconsider the whole case as it had launched a special drive for considering such cases. Immediately thereafter, a notice dated 20.04.2007 (Annex. 27) was served upon the petitioner No. 1 stating that there was a special meeting of the Development Authority for reconsidering the cases of compounding of unauthorised constructions on 23rd, 24th and 25th April, 2007 in Indira Bhawan Compound and if the petitioner No. 1 was interested, he could file the revised map for compounding the unauthorised construction.
6. It is further borne out from the record that the petitioners were called upon for personal hearing on 30.04.2007 and 5th, 10th, 11th, 16th and 18th May, 2007. Orders were passed for joint inspection of the site on 26.04.2007 and 09.05.2007. From the records, It transpires that on the note sheet from pages 32 to 40, the concerned official has carried out a detailed calculation in respect of the deviation in the sanctioned plan and also the extent of compoundable and non-compoundable constructions. The petitioners were allowed inspection of record on 11.05.2007 and 14th May, 2007 was fixed. The Development Authority fixed 15th May, 2007 for joint inspection of the site and the petitioners were further required to appear for personal hearing on 16.05.2007. Notices were sent to the petitioners through Speed Post and simultaneously, the same were affixed at their residences. A, joint; Inspection was carried out on 15.05.2007 and copy of the measurement etc. was given to the the parties concerned. The matter was fixed for hearing on 18.05.2007 but the petitioners failed to appear on the said date fixed. ,
7. It appears from the record that the order for sealing of the building/premises was also passed by the Zonal Officer of the Development Authority on 21st May, 2007 on the report of the concerned Engineers in exercise of the delegated powers of sealing of the building of the Vice Chairman of the Development Authority as per the Notification No. 4412/9-Aa-1-1998-109DA/98 dated 30th November. 1998. Hence the present writ petition.
8. Shri Shashi Nandan, learned Senior Counsel with Shri Nikhil Agarwal, appearing for the petitioners has submitted that the copy of the order of sealing the building has not been given to the petitioners and the order remained on file and the same has not been issued to the petitioners to enable them to approach the appropriate authority under the Act 1973 to challenge the said order. The order impugned cannot be given effect to as it has not been communicated to petitioners and nor it contained any reason. The impugned order is an ex parte order, as the petitioners were not afforded opportunity of hearing and as such the principles Of natural justice have been violated. Petitioners had engaged legal practitioner to take part in the aforementioned proceedings before the authority concerned. The said authorities were required to hear the submissions of the said learned Counsel. The petitioners ought to have been kept associated with the proceedings. As the new Master Plan - 2021 came into existence, the Development Authority was bound to grant benefit of the same to the petitioners.
9. Shri Vrjay Bahadur Singh, learned Senior Counsel with Shri Satish Chaturvedi appearing for the Development Authority, has resisted the writ petition submitting | that the petitioners were given full opportunity of hearing. Petitioners were kept informed of various dates fixed during the proceedings. The petitioners' version was taken in the account and and they were afforded adequate opportunity of hearing. They were involved in unauthorised and illegal construction over the site. Constructions raised by the petitioners were beyond the permissible limits. Petitioners have not only covered the said setbacks but on all the floors, they raised illegal and unauthorised constructions. The details of illegalities and infirmities committed by the petitioners have been indicated in the impugned order dated 18.05.2007 passed by the Vice Chairman of the Development Authority. The case of the petitioners were dealt with in accordance with the Act 1973 and the relevant laws. As the Master Plan - 2021 was approved vide order dated 12.07.2006 with immediate effect, it could not be given effect to retrospectively. The order impugned is well considered, explicit and reasoned and is not assailable in writ jurisdiction.
10. We have considered the rival submissions made by learned Counsel for the parties and perused the material placed on record including the original record produced by the Development Authority.
11. Admitted facts remain that after completion of the construction, may be with certain deviations from the sanctioned plan, the building was examined by the officers of the Development Authority. Application filed by the petitioners for compounding the unauthorised construction stood rejected vide order dated 09.03.2007. The said orders were challenged before this Court by filing Writ Petition No. 19486 of 2007, which was decided by this Court vide judgment and order dated 16.04.2007. The order reads as under:
This writ petition has been filed raising large number of grievance.
Shri Navin Sinha, learned Senior Counsel appearing for the respondents has submitted that the impugned order dated 09/3/2007 has already been kept in abeyance and a fresh order shall be passed after giving opportunity of hearing to the petitioners within a period of one month.
In view of the statement made by Shri Navin Sinha, learned Senior counsel, we are not inclined to probe the issue involved in this petition. The writ petition is dismissed requesting the respondent authorities to pass a fresh order after giving opportunity of hearing to the petitioners. However, it is clarified that in case the petitioners do not get the favourable order they are at liberty to challenge the same before the appropriate forum.
12. Immediately thereafter, the authority, irrespective of the order passed by this Court on 16.04.2007, as a measure of special drive, served a notice dated 20.04.2007 upon the petitioners to file a revised map and application for compounding the unauthorised constructions and again issued similar notice dated 21.04.2007 in order to ensure the compliance of the order passed by this Court on 16.04.2007. Therefore, the question that arises for consideration is as to whether after the application for compounding was rejected by the Competent Authority, was it open to the authority to permit the petitioners to re-agitate the matter before it. In the instant case, the application filed under Section 32 of the Act 1973 for compounding the unauthorised construction had been rejected vide order dated 09.03.2007 by the Vice Chairman of the Development Authority and he was the only Competent Authority to entertain and dispose of such an application. While deciding such an application, the Vice Chairman exercises quasi judicial powers. The procedure involved in an adjudicatory function is the procedure where the right of a person seeking compounding is decided. Once an appropriate decision is taken, as the Act does not provide for a review by the same authority, the subsequent invitation to the petitioners for reconsideration was, therefore, an exercise in futility for the reason that after rejecting the application for compounding the unauthorised construction, the Competent Authority becomes functus officio. The said Authority' does not appear to have any other independent source of power to either review or' sit in appeal over the order of the Vice Chairman. ( Vide Baijnath Ramgoyanka v. Nand Kumar Singh 14 Ind. App. 54 (PC); Harbhajan Singh v. Karam Singh and Ors. ; Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji ; Major Chandra Bhan Singh v. Latafat Ullah Khan and Ors. ; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur and Ors. ; and State of Orissa and. Ors. v. Commissioner of Land Records and Settlement, Cuttack and Ors. ).
13. This being the position, the next question that deserves to be considered is the impact of the order passed by the Court directing the reconsideration of the petitioners' application. A perusal of the order dated 16.04.2007 indicates that the same was passed on the concession made by learned Counsel for the Development Authority. The Court appears to have been made to believe that the authority still exercised its discretion by way of a reconsideration. However, in view of the position, explained herein above, there does not appear to be any such power available to the such authority to reopen and decide the issue again. The Court does not have a power to issue any direction in contravention of law or direct the Statutory Authority to act in contravention of law. Courts cannot confer jurisdiction upon an authority as conferring the jurisdiction is a legislative function, which can certainly not be performed by the Courts. A quasi judicial authority is not permitted to review its order unless it is so expressly conferred by the Statute itself. What was conceded before the Court was under the law, not available to the authority nor it was permissible for the respondent authority to issue a notice dated 20.04.2007 inviting the petitioners for submitting a fresh application for compounding the unauthorised constructions and reconsideration of the matter as a whole. Any action, therefore, based on such concession or notice has to fall through.
14. Events explained in this case above, make It clear that the Court should not ask the authority to decide the representation without examining the merit of the case, for the reason that such order may overreach the law of limitation and wash off the legal orders passed by the Statutory Authority. Such an order indirectly tantamounts to conferring the power of review upon an Authority, not conferred by the legislature. This view stands fortified by the judgment! of the Hon'ble Supreme Court in A.P.S.R.T.C. and Ors. v. G. Srinivas Reddy and Ors. ; and Employees State Insurance Corporation v. All India I.T.D.C. Employees Union and Ors. .
15. Be that as it. may, the order dated 16.04.2007 attained finality and the authorities have also acted upon it. The Vice Chairman passed a detailed order rejecting the application for compounding the unauthorised constructions vide order dated 18.05.2007 pointing out the following infirmities:-
I. Petitioners had failed to produce the freehold deed to claim the alleged concession of 10 ft. showing that in the Master Plan of 2021, the width of Sardar Patel Marg has been reduced from 100 sq. ft. to 80 sq. ft. entitling them to coyer 10 ft. area of the said 100 ft. road. In the absence of freehold deed, it was not possible for the Development Authority to allow such concession of 10 ft. in favour of the petitioners landlord, builder.
II. The petitioners failed to provide adequate space if for parking. In the sanctioned. plan, they, had earmarked 371.44 sq. meters for parking of vehicles while at the spot, only 150.37 sq. meters land was available for parking.
III. Petitioners failed to develop parking, as undertaken by them, after removing the old constructions.
IV. Against the sanctioned plan, petitioners raised unauthorised and illegal constructions on front and both side of setbacks of lower ground floor, upper ground floor, first floor, second floor and third floor to the extent of additional 561.36 sq. meters.
V. The first, second and third floor of the building was being used for for residential purposes as against the official use, which was against the sanctioned plan.
VI. The additional covering of setback was not compoundable. The total area of 372.81 sq. meters of the setback was not compoundable.
VII. The parking mentioned in the front setback and the side setbacks mentioned in the compounding application/revised map, was not permissible. It was mandatory to leave a minimum of 3.60 sq. meter distance from the constructed building.
VIII. Certificates relating to structure safety, earthquake resistant arrangements and fire fighting arrangements had not been produced by the petitioners.
16. The aforesaid findings of fact cannot be adjudicated upon in a writ jurisdiction as they involve questions of fact regarding the construction in deviation of the sanctioned plan. The findings so recorded, if factually correct, are serious and may not fall within the ambit of compounding. The consequential order passed by the Zonal Officer, on the basis of the reports of the other officers for sealng the building, has been challenged on the ground that it was not an order as. it remained on the file and it was not communicated to the petitioners. The report dated 19.05.2007 prepared by the Assistant Engineer and the Junior Engineer of the Development Authority was placed before the Zonal Officer. In the report, a ] recommendation was made to seal the building and permission was sought for sealing the same, which was approved and permission was granted by the Zonal Officer. Therefore, it cannot be held that the order was not passed, though the wording of the order may not be appropriate, as it was desirable on the part of the Zonal Officer to pass an order agreeing with the report and recommendations made by the Engineers of the Development Authority. But nevertheless, it was an order passed on the basis of the said report and it was considered so necessary as the report revealed that earlier petitioners had misbehaved two times with the employees of the Development Authority. It remained undisputed that the order dated 18.05.2007 was not communicated to the petitioners officially. The matter was agitated before this Court and interim relief was granted to the petitioners vide order dated 25.05.2007. The operation of the said order has been stayed by the Hon'ble Supreme Court in Special Leave Petition (C) No. 10233 of 2007, Allahabad Development Authority and Anr. v. Syed Madadgar Hussain Rizvi and Ors., and ultimately the Hon'ble Supreme Court disposed of the said Special Leave Petition vide order dated 18.06.2007.
17. Submissions have been made by Shri Shashi Nandan, learned Senior Counsel that the petitioners did not have sufficient opportunity of hearing, as an application was moved by them for deferring the matter on the ground of non-availability of their learned Counsel and the application was entertained by the respondents, though the order sent by the authority was not received by the petitioners and the order dated 19.05.2007 remained an ex parte order. It is further submitted that the order has been passed by the Vice Chairman and consequential order has been passed by the Zonal Officer and in view of the provisions contained under Section 41(3) of the Act 1973, the order is not revisable before the State Government. The Impugned orders do not record reasons.
18. On the other hand, Shri Vijai Bahadur Singh, learned Senior Counsel has submitted that in view of the provisions contained under Section 28-A of the Act 1973, the Vice Chairman or an officer empowered by him, has a power of directing the sealing of the building before or after making an order of removal or discontinuance of any development under Sections 27 and 28 of the Act 1973 and any person aggrieved by an order made under Sub-sections (1) and (2) of Section 28-A of the Act 1973 has a right to appeal against such an order before the Chairman within thirty days.
19. It is also settled proposition of law that even in administrative matters, reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Km. Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors. , the Apex Court has observed as under:
Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always.
20. In Life Insurance Corporation of India v. Consumer Education and Research Centre , the Apex Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. Same view has been reiterated by the Supreme Court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation and Ors. ; Union of India v. M.L Capoor and Ors. ; Institute of Chartered Accountants of India v. L.K. Ratna and Ors. ; Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. ; Raipur Development Authority v. Chokhamal Contractors AIR 1990 SC 1426; and Mohammad Jafar v. Union of India 1994 Supp (2) SCC 1).
21. In State of West Bengal v. Atul Krishna Shaw 1991 (Suppl.) 1 SCC 414, the Supreme Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
22. In S.N. Mukherjee v. Union of India , it has been held that the object underlying the rules of natural justice is to prevent mis-carriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as It is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
23. An authority must pass a speaking and reasoned order indicating the material on which its conclusions are based as "reasons are the links between the material the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and syntheses with the facts considered and the conclusion reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21." (Vide Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. ; Institute of Chartered Accountants of India v. L.K. Ratna and Ors. ; Raipur Development Authority v. Chokhamal Contractors AIR 1990 SC 1426; Krishna Swami v. Union of India ; Mohammad Jafar v. Union of India 1994 Supp (2) SCC 1; Vasant D. Bhavsar v. Bar Council of India and Ors. ; Indian Charge Chrome Ltd. and Anr. v. Union of India and Ors. AIR 2003 SC 953; Secretary, Ministry of Chemicals and Fertilizers, Government of India v. CIPLA Ltd. and Ors. ; Union of India and Anr. v. International Trading Co. and Anr. ; Cyril Lasrado (Dead) through LRs v. Juliana Maria Lasrado and Anr. ; Rajendra Construction Co. v. Maharastra Housing & Area Development Authority ; National Fertilizers Ltd. and Anr. v. P.K. Khanna ; Rajesh Kumar and Ors. v. Dy. CIT and Ors. ; and Ram Chandra Murari Lal Bhattad v. State of Maharastra and Ors. ).
24. Similarly, the Constitution Benches of the Hon'ble Apex Court in Bachhittar Singh v. State of Punjab and Anr. ; State of Punjab v. Amar Singh Harika , has held that an order does not become effective unless it is published and communicated to the person concerned and before the communication, the order cannot be regarded as anything more than provisional in character. Such an order neither creates any legal right nor can fasten any liability.
25. Similar view has been reiterated in Bunna Prasad v. State of U.P. and Ors. ; Union of India and Ors. v. Dinanath Shantaram Karekar and Ors. ; State of West Bengal v. M.R. Mondal and Anr. ; and Laxminarayan R. Bhattad and Ors. v. State of Maharastra and Anr. . Therefore, the law on the issues emerges that the an Administrative Authority is bound to record reasons for reaching the conclusion and order so passed by it does not become effective unless it is communicated to the person concerned.
26. The instant case requires to be examined in the light of the aforesaid legal proposition.
27. So far as the issue of service of notice fixing 18.05.2007 is concerned, the original record produced before us makes it crystal clear that notice was tendered through Speed Post and in addition thereto, it was sent through Special Messenger and the present petitioners refused to take the same after reading it and, thus, the copy thereof was affixed at a conspicuous place and, therefore, it meets the requirement of Section 41 of the Act 1973.
28. The records reveal that the deviations, which were made by the petitioners, were duly reported and after the directions issued by this Court on 16.04.2007 when the matter was being reconsidered, the Development Authority proceeded to carry out the calculations which have been referred to at pages 32 to 40 of the note sheet of the original records. Calculations were made in view of the Government Order dated 15.07.1996 (Annex. 24). This Government Order provides the procedure and the extent to which compounding is permissible in respect of the deviation either in the sanctioned plan or in the setbacks, which are to be left out acceding to the sanctioned map. The said calculations were already on record on 10th May, 2007 itself where after the petitioners inspected the records of the Development Authority on 11th May, 2007. A perusal of paragraphs 59 to 65 of the writ petition indicates that the petitioners have objected to the basis of the calculation made by the Development Authority. In paragraph 14 of the counter affidavit filed on behalf of the Development Authority, captioned as a short counter affidavit, it has been stated that it was not possible to prepare a detailed parawise reply and the short counter affidavit was being filed by way of preliminary objection. However, in paragraphs 9 to 12 of the said short counter affidavit, the deviations made by the petitioners have been indicated. It has also been stated that these deviations, which are in contravention of the sanctioned plan, are not compoundable at all and for this, findings have been given in the impugned order dated 18th May, 2007.
29. Order dated 18th May, 2007 (Annex. 39), records eight reasons for rejecting the application for compounding. However, the calculations which have been made in the note sheet dated 10th May, 2007, demonstrate the details as to what part of the disputed structure is compoundable and what part is non-compoundable. The proposed compounding fee has also been indicated therein. So far as the question of parking is concerned, it appears from the earlier notices issued to the petitioners that they had to provide the parking area by demolishing the old constructed building, which was existing at the time of the sanction of the map. The note sheet dated 10th May, 2007 further indicates that the revised map submitted by the petitioners was not in accordance with the actual constructions raised nor did it enclose the chart indicating the exact details of the constructed area, the compoundable area and the non-compoundable area. According to the said note sheet, it is not clear from the application submitted by the petitioners as to which part is compoundable and which part is not compoundable.
30. As noticed above, the petitioners have raised certain objections with regard to the basis of calculation whereas the authority on account of non-availability of the exact proposals by the petitioners, as noticed herein above, has rejected the claim of the petitioners. The impugned order recites that the setbacks and the parking area, as encroached upon, are not compoundable and the shortage in the parking area has not been made good. It further recites that the claim of benefit under the Master Plan - 2021 could not be made available to the petitioners as they have not submitted any order from the District Magistrate extending the benefit of freehold in respect of the additional land which might be available on account of reduction in the width of the road, as approved in the Master Plan - 2021. The petitioners contend that the said proposal of freehold has already been made before the District Magistrate which is pending consideration and it is for this reason that the Development Authority could have considered the said aspects as there is every likelihood of appropriate orders being passed by the District Magistrate in this regard.
31. The aforesaid material, as brought on record, therefore, indicates that there is a dispute with regard to the compoundable and non-compoundable areas and the non-availability of parking area inside the premises. For this, reference may be made to the Government Order relied upon by the petitioners dated 15.07.2006. A perusal of the same indicates the extent to which a person can claim compounding. The order impugned proceeds to reject the claim of the petitioners recording that certain area, which was meant for setbacks, cannot be compounded. The impugned order while recording these conclusions, has not referred to the calculations in the manner in which they have been indicated in the note sheet of the records of the Development Authority, detailed at pages 32 to 40. As indicated above, the said note sheet indicates the extent of compoundable and non-compoundable areas both and further indicates non-availability of exact calculations. However, from the records, it appears that some measurement was carried out on 15th May, 2007 and which has been countersigned by the authorities also. The said joint inspection of site plan is at page 296 of the writ petition, which indicates certain measurement. A report was put up after the said measurement on 15th May, 2007 by the Joint Secretary before the Vice Chairman which is at pages 43 and 44 of the note sheet. After the joint inspection, the calculations indicating the deviations were referred to in paragraph 2 of the said report after considering the revised plan, which was submitted by the petitioners on 05.05.2007. The said report indicates that there still remains certain portions of un-compoundable constructions and that the parking area as desired was not still available. It is thereafter that the impugned order was passed on 18th May, 2007.
32. Learned Counsel for the petitioners on this has urged that after this exercise had been carried out, a request was made to the Development Authority for an opportunity on account of non-availability of the counsel for the petitioners. We have already noticed, herein above, that according to the provisions of Section 43 of the Act 1973, notices were given to the petitioners by Speed Post and also affixing the same at conspicuous places including at the residences of the petitioners. In the instant case, the order of sealing has been passed by the Zonal Officer, who is the competent officer under the Government Order dated 30.11.1998. However, the same has not been communicated to the petitioners officially, though the photocopy of the same is available with them. The purpose of serving an order is that the other party may have knowledge of the same. Now, everything has been disclosed.
33. The above discussion demonstrates that objections raised by the petitioner? on these specific issues, which are also indicated in paragraphs 59 to 65 co the writ petition, have not been exactly dealt with and reasons have not been shown for rejecting the aforesaid calculation proposed by the petitioners as incorrect. Secondly, the impugned order does not refer to the calculations made by the Development Authority itself on 10th May, 2007 and thirdly, even though the petitioners were put to notice but effective hearing in fact did not take place where the petitioners could have pointed out their objections. The calculations made by the Development Authority itself, as pointed out herein above, indicate certain compoundable and non-compoundable areas. The same does not find reference in the impugned order. In view of this, we are satisfied that the petitioners have been deprived of an effective hearing and consideration on their objections We are further satisfied that the reasons given should have also taken into consideration the provisions of the Government Order dated 15.07.1996, which spells out the guidelines to be followed while exercising the powers under Section 32 of the Act 1973. We are, therefore, satisfied that another effective hearing would resolve the issue finally and, therefore, to that extent on this short ground, we set aside the Order dated 18.05.2007 for the limited purpose of reconsideration of the issue in the light of the observations made by us, herein above. The Development Authority shall proceed to decide the matter within 15 days. The petitioners shall not be granted any adjournment and they shall be at liberty to place whatever material required for the purposes of deciding the objections within one week from today. The Competent Authority shall proceed to decide the said objections by fixing a short date and take a follow-up action immediately thereafter in pursuance of said order.
34. We make it clear that the Authority shall be free to take its decision unfettered by any observations made on merits by us, herein above, after taking into account the entire material and pass a reasoned order.
35. Keeping in view the nature of the litigation between the parties and as certain constructions may be found in deviating from the sanctioned plan, we further direct that the status of sealing as directed by the Hon'ble Apex Court vide order dated 18.06.2007 shall continue to be maintained till final orders are passed by the concerned Authority as per our directions, referred to herein above.
36. With the aforesaid directions, the writ petition stands disposed of.