G. S. J. SHAPOORJEE vs ALLAHABAD DEVELOPMENT AUTHORITY

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(All) 1015

ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL AND RAKESH SRIVASTAVA, JJ.
Mrs. G.S.J. SHAPOORJEE ....Petitioner
Versus
ALLAHABAD DEVELOPMENT AUTHORITY AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 7176 of 1981, decided on 18th April, 2016)

Advocates:
Counsel :
Kuldip Amist, A.K. Misra, G.K. Singh, Jagdish Swarup, V.K. Singh and G.K. Singh for the Petitioner; S.C., Brij Mohan and Ashok Mohiley for the Respondents.

Headnote:(A) U.P. Public Premises (Eviction of unauthorised occupants) Act, 1972—Sections 2(g), 2(e)—Public premises—Unauthorised occupant—“Unauthorized occupation” includes occupation of a public premises by a person after expiry of authority to occupy such land—Which includes a person whose period of lease has expired and still he or she is continuing in possession—“Public Premises” includes any premises belonging to or taken on lease including “nazul land”—Thus, after expiry of lease, lessee become “unauthorized occupant” of ‘Nazul land’ and can be evicted from public premises under provisions Act, 1972. [Paras 29 and 30]
       (B) Judicial order—Review/Recall—Impermissibility/Permissibility—Judicial order once passed is not to be reviewed unless power is provided in administration—However if an order has been obtained by fraud or misrepresentation—Authority concerned is duly empowered to recall or review its earlier order obtained by fraud or misrepresentation. [Para 49]
       (C) U.P. Urban Planning and Development Act, 1973—Section 32—Unauthorised Construction—Compounding—Unauthorized construction would not stand regularised on payment of compounding charges—Since concept of compounding charges is not to regularize unauthorized construction—But to compound an offence so that otherwise punishment in the Court of law in a trial may not be inflicted. [Para 56]
       (D) U.P. Urban Planning and Development Act, 1973—Sections 13(2)—Master plan—Alternations—Whenever a dispute would arise about amendment sought to be made by Authority that it effects important alternations in the character of plan etc.—Dispute has to be settled by State Government. [Para 68]
       (E) U.P. Urban Planning and Development Act, 1973—Sections 16, 26—Urban Planning and Development—Use or permission to be used of any building or land in a planned area—If on date of enforcement of plan, land or building was used in any other manner—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—Such infraction is an offence punishable under Section 26 of Act, 1973. [Para 70]
       (F) U.P. Urban Planning and Development Act, 1973—Sections 13, 16, 26, 26-D—Urban Planning and Development—Deviation from a plan—Impermissibility—Except those cases which are covered by proviso to Section 16—There is a complete embargo against deviation from a plan—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 Act, 1973—Further, when there is a case of unlawful encroachment or obstruction—Even those who are responsible for preventing such encroachment or obstruction, if failed to do so, are also liable for criminal prosecution and punishment under Section 26-D. [Para 88]
       (G) U.P. Urban Planning and Development Act, 1973—Section 16—Master Plan—Flagrant violation—Attempt of violator is to retain benefit from persistent and frequent violation of statute—State Government and ADA directed to Look into matter and take steps—Necessary direction issued. [Para 106]

JUDGMENT

By the Court.—Heard Sri G.K. Singh, Senior Advocate assisted by Sri V.K. Singh, learned counsel for petitioners. None appeared for respondent Allahabad Development Authority (hereinafter referred to as “ADA”) though it has been called in revised. Hence we proceed to decide it after hearing counsel for petitioner only.

2. The writ petition is directed against order dated 2.3.1981 sent by opposite party No. 2 alongwith Secretary, ADA revoking order dated 27.2.1979 whereby proposed construction at 21 B, Civil Station/25-A, Mahatma Gandhi Marg, Allahabad was sanctioned. The reason for revoking permission is that it was obtained by fraud.

3. Brief facts giving rise to the present writ petition are as under :

4. The disputed premises being site No. 21 Civil Station, Allahabad was a Nazul land. By an indenture of lease dated 7.2.1861, Secretary of the State for India and Council granted lease in favour of J.B. Smelt for a period of 50 years which expired on 6.2.1911. The lease was renewed for a further period of 50 years vide an indenture of lease dated 22.8.1912 with effect from 6.2.1911 in favour of F.M. Adelaide Sarkies. During subsistence of lease, Collector, Allahabad allowed lessee to carry on business in the disputed premises vide letter dated 31.1.1940. The partition of lease land was sanctioned by Collector vide letter dated 20.11.1948. One portion was described as residential and another commercial. Site No. 21 Civil Station was declared Commercial area and 21-A was declared residential area. Mr.S.J. Shapoorji claiming successor in title to M/s. Adelaide Sarkies, requested Collector, Allahabad to approve partition of disputed premises into two. Collector agreed and permitted such partition subject to enhanced payment of rent by 50%. Two separate lease deeds were executed on 2.5.1949 in joint names of Mr. SJ. Shapoorji and M/s. Shapoorji for the residue period of existing lease.

5. Mr. Shapoorji and Mrs. Shapoorji let out building on site No. 21 as well as building Municipal No. 21-A, M.G. Marg (51-A M.G. Marg in 1946) to one Dharamvir Goswamy who became tenant in the said building since then.

6. Mr. and Mrs. Shapoorji executed some agreement in favour of M/s.Ganesh Das Ram Gopal of Lucknow permitting them to make constructions of shops on a portion of site No. 21 which was not in the tenancy of Dharamvir Goswamy. This lease agreement was expired in 1952. Pursuant thereto M/s. Ganesh Das Ram Gopal of Lucknow raised certain constructions on site No. 21 and transferred constructed shops to Smt. Indra Mohini and Sri Satyendra Singh.

7. Lease granted in favour of Mr. and Mrs. Shapoorji expired on 6.2.1961. Mrs. Shapoorji submitted an application requesting for renewal of lease. State Government vide letter dated 4.7.1967 communicated its decision to Collector, Allahabad that fresh lease for commercial purpose into two parts of Site No. 21 Civil Station, Allahabad may be executed for a period of 30 years with effect from 7.2.1961 with further provision of two further renewals of 30 years each subject to enhancement of yearly rent not exceeding 50% of the rent paid preceding renewal. It recommended fresh lease in favour of Smt. G.S.J. Shapoorji to the extent of 1 Acre (3000 sq. yards) at site No. 21 for an amount of premium of Rs. 88,200/- and annual rent of Rs. 647.93 and in respect to Sri Satyendra Singh and Smt. Indra Mohini Government recommended new lease for commercial purpose for an area of 4839 sq. yards at premium amount of Rs. 54,438.75 and annual rent of Rs. 399.91.

8. Collector required aforesaid beneficiaries to deposit amount of premium and annual rent vide letter dated 24.7.1967 and also to execute fresh new lease deeds.

9. Smt. Shapoorji filed suit No. 4 of 1968 in Civil Court in so far as State Government proposed to grant lease at site No. 21 Civil Station in favour of Smt. Indra Mohini and Sri Satyen

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2016 Supreme(All) 1015

ALLAHABAD HIGH COURTBEFORE : SUDHIR AGARWAL AND RAKESH SRIVASTAVA, JJ.Mrs. G.S.J. SHAPOORJEE ....PetitionerVersusALLAHABAD DEVELOPMENT AUTHORITY AND OTHERS ....Respondents(Civil Misc. Writ Petition No. 7176 of 1981, decided on 18th April, 2016)

Cases Referred (16)

ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL AND RAKESH SRIVASTAVA, JJ.
Mrs. G.S.J. SHAPOORJEE ....Petitioner
Versus
ALLAHABAD DEVELOPMENT AUTHORITY AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 7176 of 1981, decided on 18th April, 2016)