The sufficiency of notices issued by the authority under the proviso to sub section 4 of Section 18 of the U.P. Urban Planning and Development Act, 1973.

JUDGMENT :

1. Heard Sri Anurag Khanna, learned Senior Advocate assisted by Sri Tarun Agrawal, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Senior Advocate and Additional Advocate General assisted by Sri M.N.Singh, learned counsel for the respondent/ Development Authority.

2. By means of present writ petition under Article 226 of the Constitution of India, the petitioner has come up with prayer for a writ of certiorari for quashing of the order dated 26.5.2009 whereby Ghaziabad Development Authority (for short "Authority") has determined the lease of the petitioner for the reason that petitioner did not abide by the terms and conditions of the lease as the land use for which lease was granted, was not performed.

3. Briefly stated facts of the case are that respondent authority executed the lease deed on 29.12.1999 in respect of the land earmarked as "green belt", in favour of the petitioner to develop the amusement park over the leased land. However, when the petitioner did not perform as per terms of the lease, the authority came to determine the same under the order impugned.

4. Assailing the order impugned, learned Senior Advocate, Sri Khanna has argued that order having been passed in violation of the provision contained under Section 18(4) of the U.P. Urban Planning and Development Act, 1973 (for short "Act No. 11 of 1973"), the order impugned is liable to be rendered unsustainable and deserves to be quashed.

5. Relying upon the proviso to sub section 4 of Section 18 of the Act No. 11 of 1973, it has been argued that authority before passing any order determining the lease under sub-section 4 of Section 18 whereby lessor is meant to re-enter the land forfeiting the lease, it is mandatory to issue a show cause notice of such a proposed action. However, in the present case, as he submits, it is quite reflective from various documents that have been brought on record in the form of notice alongwith counter affidavit issued to the petitioner on 12th March, 2005, 20th May, 2005, 6.10.2005 and 23rd March, 2007, that all are referable to a proposed action under Section 27 of the Act No. 11 of 1973 and cannot be construed as a notice contemplated under the proviso prior to the exercise of power under sub section 4 of Section 18 of the Act No. 11 of 1973.

6. Sri Khanna submits that these notices only question the construction/development activity as an unauthorized one without sanction of approval by the authority and are meant for the proposed demolition exercise, whereas under the proviso to sub section 4 of Section 18 of Act No. 11 of 1973, show cause notice will be in respect of the proposed action of determination of lease and cancellation thereof.

7. Sri Khanna has further drawn our attention to the contents of paragraphs 14 and 15 of the counter affidavit to demonstrate that ultimate action in question has been taken only on the basis of these notices as the petitioner had failed to reply the same. He, therefore, submits that the averments as have come to be made amount to complete admission on the part of the respondent authority that they never issued any notice under the proviso to sub section 4 of Section 18 of Act No. 11 of 1973.

8. Learned Senior Advocate has argued that the order passed cancelling the lease and entire proceeding preceding the order of cancellation undertaken by the respondent authority, where de hors the procedure prescribed and so the said order is liable to be held bad and unsustainable.

9. Per contra, learned Senior Advocate Sri M.C. Chaturvedi appearing for contesting respondent, Development Authority has sought to justify the order for the reasons assigned therein. However, alternatively, he has argued that if non issuance of the notice is the only reason that makes the order liable to go, this plea being technical, the matter can be remitted to the authority and the order impugned can be taken to be notice as contemplated under the proviso to sub section 4 of section 18 of Act No.