The State cannot use private property without acquiring it and compensating the owner, as mandated by the U.P. Urban Planning and Development Act, 1973, and supported by relevant case laws.

A very short and simple but slightly interesting question is involved for consideration and adjudication in this case. The facts in brief:

2. The petitioner claims to be the owner in possession of property comprising in Khasra Nos. 4/27, 4/28 and 48/28M situated in Bhopatwala in Haridwar Town. The petitioner applied for sanction of a building plan for raising construction upon the aforesaid property comprised in aforesaid three Khasra numbers. The respondents refused to sanction the building plan and when, vide his letter dated 4th August, 2008, the petitioner enquired about the reasons for refusal, the respondents communicated that the sanction was refused on the ground that whereas, with respect to Khasra Nos. 4/27 and 4/28, the land comprised therein was reserved for 'Kumbh Mela', with respect to Khasra No. 48/28M, the land comprised therein was reserved for being used as a 'Park and open space'. Because of the aforesaid two considerations, the land comprised in the aforesaid three Khasra numbers could not be used for commercial purpose. .

3. In the counter affidavit filed, by referring to Section 7 of U.P. Urban Planning and Development Act, 1973 ('1973 Act' for short) as well as drawing Court's attention to the Master Plan prevalent for the period 1985 to 2001, respondents Nos. 1 & 2 have taken a stand that because in the Master Plan the property in question has been reserved for the aforesaid two purposes, the sanction for raising a building cannot be granted.

4. Yes, indeed under Section 7 of the aforesaid 1973 Act, read with other relevant Sections relating to Master Plan including Sections 11 & 12, it is well within the jurisdiction of the Development Authority to prepare a Master Plan and to include, within its ambit, scope and purview, a particular property for a particular use, it is the undisputed case of the parties as well as it is a settled proposition of Constitutional Law that the State or any Authority or Instrumentality of the State cannot use the property unless the property has been acquired by it in accordance with the procedure prescribed under law and the owner as well as the possessor of the property has been paid compensation again in accordance with the procedure prescribed under law. It is the undisputed case of the respondents in this Court that the property does not belong to the State. Therefore, before the respondents can use the property for any public purpose or for any purpose, either under the aforesaid 1973 Act or otherwise, they have to acquire the property after paying compensation to the owner and the possessor. Till that is done, it is not open to the respondents to refuse the grant of sanction because that would amount to depriving the legitimate owner of the property from its use by him. No person, who is the owner of the property, can be deprived from its use by him because that would amount to violation of Constitutional provisions.

5. In taking the aforesaid view, I am fortified by the following observations of their Lordships of the Supreme Court in the case of Raju 5. Jethmalani & others Vs. State of Maharashtra & others reported in (2005) 11 S.C.C. 222 :

"3. ............ It is true that a development plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning Authority. It is not that the Planning Authority was ignorant of this fact. It acquired some land from Plot No. 437 for developing garden but the land from Plot No. 438 was not acquired for garden. Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property.. ..."

6. Similarly, in the case of