Compliance with land use regulations and the classification of running a school as a commercial activity under the U.P. Urban Planning and Development Act.

JUDGMENT :

SANGEETA CHANDRA, J.

1. Heard the learned counsel for the petitioners Sri Dharmendra Singh and Sri B.K. Singh for the respondent no. -7 and Sri Vivek Shukla, learned Additional Chief Standing Counsel appearing for the respondent nos. 1, 3 & 5.

2. The petitioners have challenged the order dated 30.1.2006 passed by the Prescribed Authority, Lucknow Development Authority (LDA) and the order dated 2.5.2006 passed by the Commissioner, Lucknow Division/Chairman, LDA and the order dated 14.9.2006 passed by the Secretary, Government of U.P. rejecting the Revision of the petitioners and also other orders dated 31.5.2006 and 9.5.2006 relating to closure of School being run by the petitioners over residential Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow.

3. The petitioner no. 1 is the Manager of the petitioner no. 2 which is St. Xavier's Day School allegedly established in 1989 as a Junior High School i.e. class VI to VIII and later on being given recognition under Section 9(4) of the U.P. Intermediate Education Act by the Government on 24.3.2010, is also running Classes IX, X, XI and XII.

4. It has been pleaded in the writ petition that the School has nearly 1000 students in classes from Pre Nursery upto Class X, most of the students admitted in the School are below the age of fourteen years and under the Right of Children to Free and Compulsory Education Act it is providing education to children in the age of six years to fourteen years and the School is infact carrying out constitutional responsibilities under Article 21-A of the Constitution that are cast upon the Government. It cannot be said that the petitioners are running a commercial activity.

5. However, by the order impugned, the Authorities have directed closure of the school and demolition of illegal construction raised on Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow.

6. It has been pleaded in the writ petition that the problem started when opposite party no. 7, namely Smt. Poonam Chaudhury made a complaint to the LDA of running of the School in a residential area as her husband had constructed a house on the adjacent Plot No. B-1/35. The LDA issued notice under Section 27(1) of the U.P. Urban Planning and Development Act thereafter.

7. It has been pleaded in the writ petition also in paragraphs 15 & 17 that the petitioners had applied in 1993 before the LDA for allotment of land for running a High School and a plot of 1000 square meters had been allotted by the LDA in Sector-J in the same Kanpur Road Scheme in 2001 which is being used only for running primary section.

8. It has been submitted that a Public Interest Litigation, namely Writ Petition No. 2435 (M/B) of 2001 was disposed of finally by this Court referring to earlier judgments of Coordinate Benches and directed that no commercial or industrial activities shall be carried out in any area earmarked as residential in any city in U.P.

9. It has been submitted that taking shelter of the judgment dated 20.1.2004 passed by a Coordinate Bench in Writ Petition No. 2435 (M/B) of 2001, the opposite party no. 7 filed one Writ Petition No. 3281 (M/B) of 2005 and on 20.5.2005, this Court was pleased to pass an interim order directing the LDA to take action on the application/complaint pending under Section 27(1) against the petitioners in view of the order passed by the High Court in Writ Petition No. 2435 (M/B) of 2001.

10. It is the case of the petitioners that two Government Orders were issued in pursuance of the directions issued by the Division Bench in the Writ Petition No. 2435 (M/B) of 2001 which do not mention that educational institutions also should also be closed down if they are running in a residential area.

11. It has been submitted that the petitioners were not given any opportunity and an ex-parte order was issued on 30.1.2006 for demolition of the building in question and the petitioners being aggrieved filed a recall application before the Prescribed Authori