REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6962 of 2005
R.K. Mittal & Ors. ... Appellants
Versus
State of U.P. & Ors. ... Respondents
WITH
CIVIL APPEAL NO.6963 OF 2005
AND
CIVL APPEAL NOS.10535 &10536 OF 2011
(Arising out of SLP (C) No.24029 of 2005 and 9150 of 2007)
JUDGMENT
Swatanter Kumar, J.
1. Leave granted in both the Special Leave Petitions.
2. The ambit and scope of power of New Okhla Industrial
Development Authority (for short, the `Development Authority')
to permit users, other than residential, in the sectors
specifically earmarked for `residential use' in the Master Plan of
the New Okhla Industrial Development Area (for short, the
2
`Development Area') is the basic question that falls for
consideration of this Court in this bunch of appeals. These
appeals demonstrate some of the instances of widespread
violation of statutory provisions and somewhat arbitrary
exercise of power by the Development Authority. Lack of
adoption of uniform application of law has resulted in large
number of cases of violation of law all over the State of Uttar
Pradesh going unnoticed. The time has come for the
Development Authorities to change their style of functioning
and act vigilantly and uniformly, that too, strictly in accordance
with law, keeping in view the larger public interest.
Introductory Facts
3. This judgment shall dispose of the above referred four
civil appeals and the applications for intervention therein. Out
of the four appeals, in Civil Appeal No. 6962 of 2005and Civil
Appeal arising out of SLP(C) No. 24029 of 2005, the lease deed
in favour of the parties had been cancelled by the Development
Authority while in other two appeals, Civil Appeal No. 6963 of
2005 and Civil Appeal arising out of SLP (C) No.9150 of 2007,
after giving notice, it had passed an order requiring the parties
concerned to stop the misuse within the stipulated time, failing
which appropriate action in accordance with law, including
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cancellation of the lease deed, would be taken. The facts and
circumstances in all the appeals and even the intervention
applications are somewhat similar. In any case, the common
question of law arising in all the appeals and applications is
whether the residential premises can be, wholly or partly, used
by the original allottee or even its transferee, for any purpose
other than residential? We do not consider it necessary to refer
to the facts of each case in greater detail, except the facts of the
lead case, i.e., Civil Appeal No.6962 of 2005, R.K. Mittal v. State
of U.P. However, wherever reference to certain additional facts
is called for, we would notice the same in the other cases as
well.
4. The Development Authority executed a lease deed
dated 2nd April, 1988 in favour of Shri Rajendra Kumar
Srivastava in relation to Plot No.778, Block A, Sector XIV, New
Okhla Industrial Development Area, District Ghaziabad,
admeasuring about 274.37 square meters as per the
boundaries described in the deed. Upon the plot, the lessee
raised some construction which remained unfinished. The
lessee thereupon actually transferred the plot in question along
with unfinished superstructure vide Transfer Deed dated 20 th
August, 1999 in favour Shri R.K. Mittal, Shri Ashok Garg and
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Shri Sanjeev Gupta, the appellants herein. The original lease
deed contained specific stipulations in regard to the lessee
being obliged to obey all the Rules, Regulations and Directions
made by the lessor. The lessee was to raise construction as per
approved plans and to use the premises only for the purpose
for which it was committed in terms of the lease and as per law.
These clauses of the lease deed read as under :
"(d) That the lessee will obey and submit to all
Directions issued or Regulations made by the
Lessor now existing or hereafter to exist so for as
the same are incidental to the possession of
immovable property or so far as they effect the
health, safety or convenience of the other
inhabitants of the place.
(e) That the Lessee will at his own cost erect
on the demised premises in accordance with the
plans, elevation and design and in a position to be
approved by the lessor or any officer authorised by
the lessor in that behalf in writing and in a
substantial and workman like manner, a
residential building only with all necessary,
sewers, drains and other appurtenances according
to the Directions issued or Regulations made in
respect of buildings, drains, latrines and
connection with sewer.
XXX XXX XXX
(h) That the lessee shall use the demised
premises only for the purpose of constructing a
building for residential purpose of customary
home occupation or residential cum medical and
surgical clinic or dispensary or professional office
and for no other purpose without the consent of
the Lessor and subject to such terms & conditions
as Lessor may impose and will not do or suffer to
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be done on demised premises or any part thereof,
any act or thing which may be or grow to be a
nuisance, damage, annoyance, or inconvenience to
the Lessor or the owners, occupiers of other
premises in the neighbourhood."
5. The Transfer Deed executed by the original lessee in
favour of the appellants also contained similar conditions and
in addition thereto provided that the conditions of the lease
deed shall be binding upon the appellants. The relevant
clauses of the Transfer Deed read as under :
"10. That the Transferees shall complete the
construction of plot and shall obtain
Occupancy Certificate of Plot from Building
Cell, Noida within balance construction
period as per terms of lease deed of plot
which is upto 23.2.2000. Extension of time
for construction of plot and for obtaining
occupancy certificate will be granted as per
terms of lease deed of plot and as per then
prevailing extension policy of NOIDA.
11. That the Transferee shall be bound by the
terms and conditions of lease deed of plot
executed on 2.4.88, subject to the
amendments indicated in the Transfer
Memorandum.
XXX XXX XXX
15. That the Transferees shall put the property in
the use exclusively for residential purpose
and shall not use it for any purpose other
than residential.
XXX XXX XXX
17. That the terms and conditions amended by
the NOIDA AUTHORITY from time to time
shall be binding on the Transferees
aforesaid."
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6. After completing the construction, the appellants
appear to have rented out the premises to Andhra Bank and
Akariti Infotech. As such, both the bank and the company had
been carrying on their business from the premises in question.
The Development Authority, on 18th January, 2001 and 22nd
February, 2001 issued notices to both Andhra Bank and Akariti
Infotech to stop commercial use in the said premises within 30
days, failing which action would be taken as per the lease deed.
In these notices, it was also stated that there was
encroachment in violation of the prescribed building byelaws
and the use of residential plot for commercial purpose was in
violation of the provisions of the lease deed of the plot.
Invoking the provisions of the U.P. Industrial Area Development
Act, 1976 (for short, `the Act'),the Development Authority gave
them opportunity to file objections. To these notices, the
appellants not only filed objections but also appeared before the
Development Authority and contended that the Development
Authority, in furtherance to the proposal to permit running of
consulting clinics, banks and guest houses in the residential
areas, had permitted such use on the main roads, on payment
of 30 per cent of the existing residential rate on per square
meter area of plot per annum and had invited suggestions from
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the general public. Reliance was also placed on certain press
reports. Noticing these facts and obviously taking the view that
there was no legal sanctity to the alleged change of user, the
Development Authority rejected the objections and required the
misuse to be stopped and the violation of the building byelaws
to be removed within four months. A part of the said order
reads as follows :
"The terms and conditions of lease deed and
transfer deed of plot clearly states that allotted
plot shall be used exclusively for residential
purposes. The petitioner changed the land use of
plot without intimating to the Authority and did
not bother to seek any clarification or obtain
permission from the Authority for such change. It
is a well known fact that this Authority does not
permit commercial activity in the residential plots.
This is a classic case of violation of law by the
most educated enlightened class of the Country.
This class in Noida has tried to change not only
the character of Noida but have for self interest
destroyed the peace of the Neighbours. It is also
possible that the then Bank staff also colluded in
the matter and did not bother to see the
conditions contained in the lease deed and did not
even try to approach the Authority for clarification.
In view of the above stated facts and after
listening to the petitioner, it is ordered that
representation pleadings of the petitioner Allottee
of Residential Plot No.A-778, Sector-19 stand
rejected and the petitioner is also directed to
ensure vacation of bank branch and infotec office
from the residential premises and restore the
building according to prescribed building bye-law
within 4 months (Four Months) from the date of
service of this order.
7. As the Petitioner has evaded compliance of
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terms of lease deed for nearly five months on one
pretext or the other, he is also informed that in
case of failure to restore the land use of plot within
stipulated period, the Authority shall be free to
take further action under law WITHOUT
FURTHER NOTICE.
Orders regarding penalty for misuse of
premises will be passed separately."
7. Aggrieved from the aforesaid order, the appellants filed
a writ petition before the High Court of Judicature at
Allahabad. The writ petition preferred by the appellants came
to be dismissed vide order dated 19th January, 2002. It was
noticed by the High Court and rightly so, that the Development
Authority had invited some suggestions for change of user of
residential plots to commercial or mixed user on certain terms
and conditions, by bringing certain changes/amendments in its
byelaws and policy decisions. This remained at an interim stage
and no final decision was taken by any competent authority in
accordance with the provisions of the Act. The Development
Authority had not undertaken any exercise for the said
amendment in accordance with law and had not even sought
the approval of the State Government, as required under the
law, for change of user or amendment of the byelaws, Master
Plan, etc. In fact, the provisions directing forfeiture of property
under Section 14 of the Act and imposition of penalty for
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misuse in terms of Section 15 of the Act were in force. Relying
upon judgment of this Court in Munshi Ram v. Union of
India[(2000) 7 SCC 22], the High Court not only dismissed the
writ petition but also directed the Development Authority to
take immediate and strong action against those who have
started using residential plots, wholly or partially, for other
non-residential uses. The appellants, feeling dissatisfied by the
judgment of the High Court, have preferred the present appeal
before this Court. In order to complete the factual matrix of the
case, we may notice that the appellants have placed on record
Annexure P-7, a copy of the public notice dated 30 th March,
2000 indicating that there was proposal to grant permission for
mixed use consulting clinics, bank branch and guest houses on
18 A.M. wide roads on the conditions stated therein. These
conditions also included the provision that fees payable on
grant of permission for mixed use of land would be 30 per cent
of existing residential rate, on per square meter area of plot, on
yearly basis. To this proposal, public opinion was invited and it
was stated that objections/suggestions in this regard may be
filed in writing in the office of the Additional Chief Executive
Officer of the Development Authority. Even hearing was to be
granted. In the affidavit filed on behalf of the respondent-
10
Development Authority on 8th October, 2002, it has been
specifically averred that 21 banks were functioning in
residential sector in the Development Area under private
arrangements with the lessees of the concerned plots and these
banks have not obtained any permission or authorization from
the Development Authority. Two banks, namely, Oriental Bank
of Commerce, Sector 27, Noida and Vijaya Bank, Sector 19,
Noida had obtained such permission for a period of five years
and three years respectively since 1995 and 1994. These
banks had not obtained any permission or renewal thereafter.
Show cause notices had been issued to all the banks to wind
up their activities from these areas. In para 10 of the affidavit,
it had been stated that the Development Authority `has taken a
firm decision to evict all the banks from the residential sectors
and notices have been issued to all these 21 banks without
exception'. A definite averment has also been made in this
affidavit that the functioning of the banks in the residential
sectors caused inconvenience and disturbance to the public at
large and the Development Authority has earmarked specific
areas for making land available to the banks to carry on their
commercial activities. They have allotted land to several banks
in commercial-cum-institutional and commercial portion of
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industrial and institutional sectors. Option was given to the 21
banks to function in these areas and that if they would apply
for the same, the Development Authority shall consider their
cases sympathetically. The Development Authority, specifically
and with emphasis, reiterated that banking activities cannot be
allowed in residential plots of the residential sector. Another
affidavit was filed on behalf of the Development Authority in
March 2011, wherein a clear stand was taken that as per the
Master Plan, Sector 19 of the Development Area is a residential
sector, where the land use is residential alone, neither
commercial nor mixed. List of 43 properties in Sector 19,
Noida was filed as Annexure-1, where non-residential activities,
including banking and medical clinics, were being carried on
while Annexure-2 related to other 11 properties being used for
other non-residential purposes in Sector 19 itself. There are
institutional plots in Sector 19, which had been allotted by the
Development Authority for running of nursing homes or
commercial activity. An office order was issued on or about
14th May, 2009, in relation to Guest Houses, by the Chief
Executive Officer of the Development Authority. However, the
same is stated to have been withdrawn immediately thereafter.
In other words, according to the respondents, there is no order
12
or sanction operative and binding as of now, which permits any
user other than residential in the residential sector.
8. Having stated the facts, we may now examine the
relevant provisions of law. The State of Uttar Pradesh had
enacted the law to provide for creation of an Authority for
development of certain areas of the State into industrial and
urban townships and for matters connected therewith.
`Authority' had been defined under Section 2(b) of the Act to
mean the Authority constituted under Section 3 of the Act.
Section 3 required the State Government to constitute, for the
purposes of the Act, an authority for any industrial
Development Area in terms of that Section. Section 6 of the Act
related to functions of the Authority while Section 7 mentions
the powers of the Authority in respect of transfer of land. In
terms of these statutory provisions, the object of the Authority
was to secure the planned development of industrial
Development Area and the Authority was required to perform
certain functions in terms of Section 6(2), which reads as
under:
"2) Without prejudice to the generality of the
objects of the Authority, the Authority shall
perform the following functions--
(a) to acquire land in the industrial development
area, by agreement or through proceedings
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under the Land Acquisition Act, 1894 for the
purposes, of this Act;
(b) to prepare a plan for the development of the
industrial development area;
(c) to demarcate and develop sites for industrial,
commercial and residential purposes
according to the plan;
(d) to provide infra-structure for industrial,
commercial and residential purposes;
(e) to provide amenities;
(f) to allocate and transfer either by way of sale
or lease or otherwise plots of land for
industrial, commercial or residential
purposes;
(g) to regulate the erection of buildings and
setting up of industries; and
(h) to lay down the purpose for which a
particular site or plot of land shall be used,
namely for industrial or commercial or
residential purpose or any other specified
purpose in such area."
9. In terms of Section 8 of the Act, for the purposes of
proper planning and development of the industrial development
area, the Authority had the power to issue directions, as it
consider necessary, regarding the factors stated therein,
including restriction of use on any site for a purpose other than
for which it has been allocated. Every transferee in whose
favour the land was transferred was bound to comply with the
directions issued as expeditiously as possible and was obliged
14
to erect the building or to take such necessary steps to comply
with the directions in accordance with Section 8(2) of the Act.
No person could raise construction, erect or occupy the
building in contravention of the building regulations. The
Authority has been vested with the powers to make regulations
with the previous approval of the State Government in terms of
Section 19 of the Act, while the State Government may, by
notification, frame Rules for the purposes of the Act as
contemplated under Section 18 of the Act.
10. Section 2(d) of the Act defines `Industrial Development
Area' to be an area declared as such by the State Government
by notification. Section 6(2)(b) requires the Authority to prepare
a plan for the development of an industrial development area
while Section 6(2)(h) enjoins the Authority to lay down the
purpose for which a particular site or plot of land shall be used,
namely for industrial or commercial or residential or any other
specified purpose. The power to transfer lands is also given to
the Authority. In terms of Section 19 read with Section 6 of the
Act, the New Okhla Industrial Development Area was notified
and the Authority framed the regulations for the purposes of
proper planning and development of that area. These were
15
called the New Okhla Industrial Development Area (Preparation
and Finalization of Plan) Regulations, 1991 [hereafter referred
to as `the Regulations']. Regulation 2 of the Regulations defines
various kinds of uses including `Land Use'. `Land Use' under
Regulation 2(g) means the use of any land or part thereof in the
industrial development area for industrial, residential,
institutional, commercial, public water bodies, organized
recreational open spaces, public and semi-public buildings,
agriculture and other like purposes. In contradistinction to the
`Commercial Use', `Industrial Use' `Institutional Use' and `Public
Use', the `Residential Use' has been defined under Regulation
2(1)(k) which reads as under: -
"(k) `Residential Use' means the use of any land or
building or part thereof for human habitation and
such other uses incidental to residential uses."
11. The expression `Sector' has also been defined in
Regulation 2(l) to mean any one of the divisions in which the
industrial development area or part thereof may be divided, for
the purposes of development under the Act. Regulation 3
enjoins upon the Authority a duty to prepare a Draft Plan for
industrial development areas in terms of Regulation 3(1) to
3(6). Under Regulation 4, the Plan has to include sector plans
16
into which such industrial area has been divided. It should
also depict the residential use by allocating the area of land for
housing, for different and defined densities and plotted
development for different categories of households in terms of
Regulation 4(1)(b)(ii). Similarly, it should also state the
commercial use, public use, agricultural use and other
purposes as the Authority may deem fit. The procedure for
finalization of the Draft Plan is also contemplated under
Chapter III, Regulations 5 to 11 of the Regulations. The
Regulations postulate that the Authority, after preparation of
the Draft Plan, shall, by public notice, invite objections and
suggestions to be filed before the date notified but not earlier
than 30 days from the date of publication. A proper enquiry
and hearing is contemplated whereafter the Draft Plan is to be
finalized in terms of Regulation 9 and the date of
commencement of the Plan is to be specified in terms of
Regulation 10. The Authority has the power to amend the
Plans but this power to amend is restricted in its scope.
Regulation 11 empowers the Authority to do so, but no such
amendment can be made which would result in important
alteration in the character of the Plan and which do not relate
to the extent of land use or standards of population density.
17
Even thereafter, it is required to follow the prescribed
procedure. Regulation 11 reads as under: -
"11. Amendment of the Plan. - (1) The
Authority may make such amendments in the
Plan which do not effect important alteration in
the character of the Plan and which do not relate
to the extent of land use or standards of
population density.
(2) Before making any amendment in the Plan
under sub-section (1), the Authority shall publish
a notice in at least one newspaper having
circulation in the development are inviting
objections and suggestions from any affected
person with regard to the proposed amendment
before such date as may be specified in the notice
and shall consider all objections that may be
received.
(3) Every amendment made under this
Regulation shall be published in any of the
manner specified in Regulation 5 and the
amendment shall come into operation either on
the date of the first publication or on such other
date as the Authority may fix.
(4) The Authority shall not make during the
specified period in which the Plan is to remain
effective, such amendment(s) in the Plan which
affects important alteration in the character of the
Plan and which relates to the extent of the land
sue or standards of population density."
12. It is not in dispute before us that the Development
Authority had finalized the Master Plan in accordance with the
provisions of the Act and the Regulations, which was titled as
18
`Master Plan, NOIDA, 2001'. This Plan is in force and is
binding on all concerned.
13. Besides the above provisions of the Act and the
Regulations framed thereunder by the Development Authority,
the Development Authority has also framed building
regulations and directions, which are termed as `The New
Okhla Industrial Development Area Building Regulations and
Directions, 2006 (for short `Regulations 2006)'. These have
been primarily framed as byelaws in relation to the
constructions, restrictions thereof and type of user. Under
Regulation 3.12 (h), a residential building is explained as
under: -
"(h) `Residential building' refers to any building in
which sleeping accommodation is provided for
normal residential purpose with or without
cooking or dining or both facilities and includes
one or two or multi family dwelling, lodging or
rooming houses, dormitories, apartment houses,
flats and hostels."
14. In distinction to the `residential building', an `industrial
building' is the building or part thereof, in which product or
materials of all counts and properties are fabricated,
assembled, manufactured etc. An `institutional building' refers
to a building or a part of a building which is used for purposes
19
such as medical or other treatment or care of persons suffering
from physical or mental illness, disease or infirmity and
includes hospital, institutions and sanitaria etc. while a
`business building' refers to a building or part of a building
which is used for transaction of business like Banks,
Commercial office, etc. In other words, each building proposed
to be used for a definite purpose has to meet different
standards, FAR (Floor Area Ratio) and byelaws. These
purposes are incapable of being confused with each other or
even used interchangeably. Respective purposes have been
defined in unambiguous terms in the byelaws, having distinct
implications.
15. It does not appear to be the scheme of the provisions of
the Act, the Regulations and the bye laws, including the
Regulations, 2006 that each of these purposes or buildings can
be understood or used interchangeably. In fact, each has
distinct features and it does not lie in the jurisdiction of the
Development Authority to permit such conversion in users,
beyond the scope of the Master Plan, the byelaws and the
statutory provisions. Regulation 3.22 of the Regulations, 2006
explain the word `conversion' to mean the change of an
occupancy or change in building structure or part thereof,
20
resulting into change of space or use requiring additional
occupancy certificate.
16. The change in user of the building is, therefore,
violative not only of the Regulations, byelaws and the
provisions of the Act, but is also contrary to the law governing
erection of the building. The legislative purpose that emerges
from the scheme of the Act and other relevant provisions is to
keep a residential building separate from commercial and other
buildings. This would necessarily imply that the jurisdiction of
the Development Authority to permit different user in violation
of this statute and the Regulations is not contemplated in law.
Contentions
17. On behalf of the appellants/lessees/users, in the cases
before us, it has been contended that the activity of banking or
running of clinics is being carried on by them for a long period.
Thus, this has been impliedly permitted by the Development
Authority. It is also their contention that a public notice had
been issued by the Development Authority, permitting mixed
user and, thus, the appellants/lessees/users are bonafidely
carrying on activities of running banks/nursing homes/other
commercial activities in the residential sectors. Reliance has
21
been placed upon Public Notice dated 30th March, 2000 and
also that vide notification dated 4th December, 2010 plots
allotted in the developed sector to farmers under a
Rehabilitation Scheme had permitted establishment of guest
houses, restaurants, banks, professional offices, day care
centres etc. vide notification dated 4th December, 2010.
18. It is also the contention of the appellants that neither
the byelaws, rules and regulations nor the layout plan of the
Development Authority, in any manner, impede or place any
kind of bar on carrying out banking activity in the residential
sectors.
19. While relying upon the judgments of this Court in the
case of Hari Rao Vs. N. Govindachari & Ors. [(2005) 7 SCC
643], and Dev Brat Sharma Vs. Jagjit Mehta [(1990) Supp. SCC
724], it was contended that such use does not amount to
change of user as it is permissible to carry out professional or
clinical activity in the residential houses and, therefore, the
notice of termination issued and/or cancellation of the lease
deeds, being arbitrary and without application of mind, was
vitiated in law.
20. Lastly, it was contended that as there is inadequacy of
space for banks, clinics and other commercial offices in the
22
Development Area, the present user is need-based and is in the
larger public interest. According to the appellants, the number
of plots for the banks is not sufficient to meet the needs of the
public in the residential sectors and no alternative spaces are
available for relocation of the banks. The lease rent and other
charges payable to the Development Authority for both these
categories have a considerable difference. Thus, it has the
impact of creating heavy liability and inconvenience to the
appellants, particularly if they are forced to shift to commercial
or institutional sectors/pockets.
21. On the contra, the contention on behalf of the
Development Authority is that banking activity is impermissible
in the residential sectors. It causes inconvenience to public
and disturbance to the residents. Referring to the Meeting
dated 17th December, 2002 of the Committee of the Officers,
the stand taken is that banking activity cannot be allowed in
the residential portions of the residential sectors and to this
effect, a notice was also published.
22. Further, the contention is that the power of the
Development Authority to demarcate and develop sites, to lay
down the purpose for which a particular site or plot of land
shall be used, is controlled by the specific provisions of the Act
23
and the Regulations framed thereunder. Sections 6(2)(b) and 7
of the Act are stated to be the source of power in this regard. It
is also the contention that in the Master Plan, 2001,
subsequent Plans and the Zoning Regulations, all residential
sectors are marked in yellow colour. Sector 19 of the
Development Area, where the subject matter of this case is
located, is a residential sector. Thus, it can only be used for
the residential purpose.
23. The learned counsel appearing for the
lessee/transferees had relied upon the judgments of this Court
in the cases of Hari Rao (supra) and Dev Brat Sharma (supra).
Both these judgments have no application to the present case,
on facts or in law. These were cases of eviction under the
respective Rent Restriction Acts. In one case, this Court held
that putting up of a clinic in a part of the house by a doctor
was not change of user, while in the other, where the premises
had been rented out for a commercial purpose of selling of
leather goods, change of the industry to a garment and cloth
business, was not considered as change of user. We are
unable to understand as to how the lessees in the present case
can derive any benefit from these judgments. In the present
case, we have a clear law in force and that law is neither
24
similar in purpose nor linguistically identical to the Rent
Restriction Acts of the respective States. The change of user, in
the case in hand, has to be seen in light of the Master Plan, the
Regulations and the provisions of the Act. What may not be
change of user under the Rent Restriction Act, as the rights of
the parties therein are governed by the contract between the
parties and the grounds of eviction taken by them, may be a
change of user within the scope of development Plan and the
Regulations.
24. In light of the contentions raised, first of all, it will be
appropriate for this Court to examine the scheme of the Act
and the Regulations in question. Under the provisions of the
Act, the Development Authority is obliged to notify an
industrial development area. The very object of the
Development Authority is to secure the planned development of
the industrial development area and the first and foremost step
in this direction is to prepare a Plan for development of the
industrial development area. This development Plan is to
demarcate and develop sites for industrial, commercial and
residential purposes. The land which falls within the
jurisdiction of the Development Authority and is part of the
development Plan can be transferred in terms of Section 7 of
25
the Act by auction, allotment or otherwise, on such terms and
conditions as the Development Authority may state and subject
to any rules that may be made thereunder. No person can
erect or occupy any building in an industrial development area
in contravention to any building Regulation. Under Section
6(2) of the Act, the Development Authority is empowered to
make Regulations to regulate the erection of the buildings and
Section 6(2)(b) specifically authorizes the Development
Authority to make regulation providing for the layout Plan of
the building, whether industrial, commercial or residential.
The transfer of the land has to be as per the terms and
conditions contained in the lease deed executed by the
Development Authority in favour of the transferee. But this all
has to be subject to the provisions of the Act and the
Regulations framed thereunder. It has to be clearly understood
that the lease deed has to be in consonance with law and
cannot be in conflict with the provisions of the law. Section 14
of the Act empowers the Development Authority to resume the
site or building so transferred and further forfeit whole or any
part of the money paid in respect thereof, if the lessee commits
breach of the terms and conditions of the lease. No provision of
the Act has been brought to our notice which provides for the
26
manner and method to be adopted by the Development
Authority for preparation of the development Plan in
accordance with the provisions of the Act. This is where the
Regulations come into play. Under Regulations 3 and 4 of the
Regulations, the Draft Plan has to be prepared by the
Development Authority for development of an industrial area,
which will include a sector plan. The meaning of `residential
use' under the Regulations is a restricted one and is incapable
of being given a wide connotation. It means the use of any land
or building or part thereof for human habitation and such
other uses incidental to the residential use. The very language
of Regulation 2(1)(k) of the Regulations clearly depicts the
intent of the framers that the expression `residential use' is not
to be understood in its wider sense, in fact, it would require
strict construction because all other uses have been separately
defined. The different kinds of uses, therefore, have to be
understood only in terms of the explanation or meaning given
to them under the Regulations. If unduly wide meaning is
given to the expression `residential use', then it is bound to
cause overlap between the other uses. It would cause
unnecessary confusion. Thus, each use has to be understood
as per its plain language and there is no need for the
27
Development Authority or, for that matter, even for the courts,
to expand the meaning given to such expressions. The
expression `such other use incidental to residential use' in
Regulation 2(1)(k) has to take its colour from the use of the
building for human habitation. In other words, the latter part
of the Regulation has to be read ejusdem generis to the earlier
part of that Regulation.
25. The development Plan has to be prepared in
accordance with the provisions of the Act and the Regulations
framed thereunder. As already noticed, the Development
Authority has to prepare the Draft Plan, give public notice
thereof, invite objections and thereupon conduct an inquiry
and hearing as contemplated under the law, before preparing a
final development Plan. This final development Plan is a
statutory requirement which has to be prepared as ordained
under the provisions of Section 6(2)(b) of the Act read with
Regulations 5 to 11 of the Regulations. This Plan necessarily
provides for a particular use or purpose of any area/site,
namely industrial, commercial institutional or residential. The
notified development Plan has a legal sanction and provisions
contained therein are mandatory in nature. They are
incapable of being altered or varied without following the due
28
process prescribed in law. Reference can be made to the
judgment of this Court in the case of NOIDA Entrepreneurs
Association v. NOIDA & Ors. [(2011) 6 SCC 527]. Further, this
Court, in the case of NDMC & Ors. v. Tanvi Trading and Credit
Private Limited and Ors. [(2008) 8 SCC 765], not only took the
view that even the interim guidelines issued in relation to
Luytens' Building Zone till finalization of the Master Plan for
Delhi would have statutory force and be treated mandatory,
but also that such guidelines, so far as consistent with the
Master Plan, would continue to be binding even after coming
into force of the Master Plan.
26. It has to be noticed at this stage that the development
Plan prepared in accordance with the Regulations take the
statutory colour in terms of Section 6(2)(b) of the Act and,
therefore, its alteration by an executive order would be
impermissible. Even when a Master Plan is to be amended,
the entire prescribed procedure must be followed. The power
to amend should be exercised only in consonance with the
settled norms without going beyond the original power of the
Development Authority to make such Plan in accordance with
the provisions of the Act. The power to amend cannot be used
to frustrate the provisions of the statute. Regulations, being
29
subordinate legislation must fall in line with the principal
provisions of the Act and in no way should be detrimental to
the provisions and the legislative scheme of the Act.
27. In the case of M.C. Mehta v. Union of India & Ors.
[(2004) 6 SCC 588] dealing with the question of unauthorized
industrial activity in residential area in Delhi, the plea raised
for in situ regularization of areas with 70 per cent industrial use
was not accepted by this Court, holding that regularization
would have adverse impact on the law abiders. This Court also
held that the land cannot be permitted to be used contrary to
the stipulated user except by amendment of Master Plan, after
due consideration of the provisions of the Act and the Rules.
Inaction by the Government authorities means permitting the
unauthorized use, contrary to law.
28. The authorities while reconsidering such matters are
expected to act reasonably and cautiously. They deal with
larger public interest and, therefore, have a responsibility to act
with greater degree of sensitivity and proper application of
mind. If the Development Authority aids the violation of the
statutory provisions, it will be a perversity in the discharge of
statutory obligations on the part of the Development Authority.
The public interest, as codified in the statutory regulations and
30
the provisions of the Act, should control the conduct of the
Development Authority and its decision making process, rather
than popular public demand guiding the exercise of its
discretion, that too, in a somewhat arbitrary manner. To
illustrate the dimensions of exercise of such powers, we may
refer to the judgment of this Court in the case of Bangalore
Medical Trust v. B.S. Mudappa & Ors. [(1991) 4 SCC 54],
wherein this Court was concerned with the provisions of the
Bangalore Development Authority Act, 1976 with particular
reference to Sections 33, 38 and 38(A) of that Act. A site
intended for a public park was sought to be converted into a
hospital/nursing home, under the garb of the latter being a
`civic amenity'. This Court formed the view that such
conversion of an open space reserved under the scheme for a
public park into a civic amenity site by constructing hospital
and allotment of the site to persons or body of persons, was
opposed to the objects of the Act and would be ultra vires the
same. This Court held as under:-
"46. .......No one howsoever high can arrogate to
himself or assume without any authorisation
express or implied in law a discretion to ignore
the rules and deviate from rationality by
adopting a strained or distorted interpretation
as it renders the action ultra vires and bad in
31
law. Where the law requires an authority to act
or decide, `if it appears to it necessary' or if he is
`of opinion that a particular act should be done'
then it is implicit that it should be done
objectively, fairly and reasonably. Decisions
affecting public interest or the necessity of
doing it in the light of guidance provided by the
Act and rules may not require intimation to
person affected yet the exercise of discretion is
vitiated if the action is bereft of rationality,
lacks objective and purposive approach. The
action or decision must not only be reached
reasonably and intelligibly but it must be
related to the purpose for which power is
exercised. The purpose for which the Act was
enacted is spelt out from the Preamble itself
which provides for establishment of the
Authority for development of the city of
Bangalore and areas adjacent thereto. To carry
out this purpose the development scheme
framed by the Improvement Trust was adopted
by the Development Authority. Any alteration in
this scheme could have been made as provided
in sub-section (4) of Section 19 only if it
resulted in improvement in any part of the
scheme. As stated earlier a private nursing
home could neither be considered to be an
amenity nor it could be considered
improvement over necessity like a public park.
The exercise of power, therefore, was contrary
to the purpose for which it is conferred under
the statute."
29. The above decision of the Court was given in light of the
provisions of Section 19(4) of that Act which empowered the
Authority to alter the scheme, where it appeared to the
Authority that an improvement could be made in the scheme.
32
In other words, the power given to the Authority has to be
construed in strict terms and it cannot be exercised in a
manner which will run contrary to the scheme of the Act and
which would defeat the very object of the Act and the
Regulations.
30. The jurisdiction of the Development Authority has to be
seen on the touchstone of proper exercise of power within its
legal limitations while giving full effect to the statutory
provisions. This Court in the case of S.N. Chandrashekar &
Anr. v. State of Karnataka & Ors. [(2006) 3 SCC 208], referred
with approval to judgments of the High Courts, applying the
rule of strict construction to the terminology used and while
interpreting the words `commerce' and `commercial' held that
intra category changes could be permitted only in accordance
with law and Section 14-A of that Act. Even if the change of
user is consented to by the residents of the area, it would be no
ground to permit such a change in violation of the Regulations.
This Court stated the law as follows:-
"27. The Planning Authority has no power to permit
change in the land use from the Outline
Development Plan and the Regulations. Sub-section
(1) of Section 14, as it then existed, categorically
stated, that every change in the land use, inter alia,
must conform to the Outline Development Plan and
the Regulations which would indisputably mean
33
that it must conform to the Zoning Regulations.
28. The provisions of the Act are to be read with the
Regulations, and so read, the construction of
Sections 14 and 15 will lead to only one conclusion,
namely, such changes in the land use must be
within the Outline Development Plan and the
Zoning Regulations. If running of a hotel or a
restaurant was not permissible both under clauses
(a) and (b) of the Zoning Regulations in a residential
area, such change in the land use could not have
been permitted under Section 14 read with Section
15 of the Act. It is precisely for that reason, Section
14-A was introduced."
31. Even in the case of ITC Ltd. v. State of Uttar Pradesh &
Ors. [(2011) 7 SCC 493], this Court declined to accept the
contention that where the State Government had treated the
hotels as an `industry' even in such cases, the same could not
be treated as `industry' under the Act because the byelaws
continued to treat the hotels to be a commercial activity and
that had alone covered such industry. This Court held as
under:-
"38. The learned counsel for the respondents
submitted that the lease was terminated by the
State Government, in exercise of revisional
jurisdiction under Section 41 of the U.P. Urban
Planning and Development Act, 1973 read with
Section 12 of the Act on the ground that there
were irregularities and violations of regulations
and policies of Noida Authority in allotting the
hotel plots to the appellants. It is submitted that
the State Government has such power to cancel
34
the allotment and as a consequence the lease."
32. Reference can also be made to the judgment of this
Court in Dr. G.N. Khajuria & Ors. v. Delhi Development Authority
& Ors. [(1995) 5 SCC 762]. In that case, the Plan had provided
for a public park and the Delhi Development Authority had
taken the decision to establish a nursery school for the benefit
of the children of the colony. Rejecting the contention, this
Court observed that within the framework of law and the
provisions made in the Master Plan, the authorities could only
establish a public park and nothing else, as such conversion
would amount to misuse of power.
33. All the above judgments clearly show that it is not
merely at the discretion of the Development Authority
concerned to designate user of a site and then alter the same
without following due process of law. Even where such an
exercise is required to be undertaken by the Development
Authority, there also it is expected of the Development
Authority to act for the betterment of the public and strictly in
accordance with the Plans and the statutory provisions. It
cannot take recourse to its powers and use its discretion
contrary to such provisions and that too, to frustrate the very
35
object of the Act. Exercise of power ought not to be destructive
of the provisions of the Act and the Plans, having the force of
law. We would hasten to add that even where the requisite
prescribed procedure is followed, still the discretion should be
exercised sparingly for achieving the object of the statute and
not to completely vary or destruct the purpose for which the
sector has been earmarked.
34. A decision which is sought to be taken by the
Development Authority in the garb of a policy decision matter,
if not in conformity to the Master Plan, the Regulations and
provisions of the Act in force, would be an action extra jus. The
Development Authority is to act in adherence to the provisions
of the law regulating such user or construction. The laconic
result of a collective reading of the afore-referred statutory
provisions is that the Development Authority or its officers,
have no power to vary the user and spaces prescribed in the
Master Plan, except by amending the relevant laws and that
too, for a proper object and purpose. Any decision, as a policy
matter or otherwise, for any extent of public convenience, shall
be vitiated, if it is not supported by the authority. The Courts
would examine what is the sensible way to deal with this
situation, so as to give effect to the presumed purpose of the
36
legislation. The provisions in question should be construed on
their plain reading, supporting the structure of the legislative
intent and its purpose. The rule of schematic interpretation
would come into play in such situations and the concerned
Development Authority cannot be permitted to overreach the
procedure prescribed by law, with designs not acceptable in
law.
35. The Development Authority is inter alia performing
regulatory functions. There has been imposition of statutory
duties on the power of this regulatory authority exercising
specified regulatory functions. Such duties and activities
should be carried out in a way which is transparent,
accountable, proportionate and consistent. It should target
those cases in which action is called for and the same be
exercised free of arbitrariness. The Development Authority is
vested with drastic regulatory powers to investigate, make
regulations, impute fault and even to impose penalties of a
grave nature, to an extent of cancelling the lease. The
principles of administrative justice squarely apply to such
functioning and are subject to judicial review. The
Development Authority, therefore, cannot transgress its powers
as stipulated in law and act in a discriminatory manner. The
37
Development Authority should always be reluctant to mould
the statutory provisions for individual, or even public
convenience as this would bring an inbuilt element of
arbitrariness into the action of the authorities. Permitting
mixed user, where the Master Plan does not so provide, would
be glaring example of this kind.
36. In the case of Shabi Construction Company v. City &
Industrial Development Corporation & Anr. [(1995) 4 SCC 301],
this Court held that, prior sanction of the State Government
being the sine qua non for a final development Plan, as also for
minor modifications thereof, under Sections 31 and 37 of the
Maharashtra Regional and Town Planning Act, 1966, the
agreement entered into with the Planning Authority so far as it
relates to increased Floor Space Index (FSI) did not and could
not bestow any legal right upon the appellant. To put it
conversely, only on sanction by the State Government, could
the inchoate right under the agreement crystallize into a legally
enforceable right in favour of the appellant.
37. Still, in another case of K.K. Bhalla v. State of M.P. &
Ors. [(2006) 3 SCC 581], this Court did not approve and attach
any validity to the action of the Chief Minister directing and
38
calling for a proposal from the said Development Authority to
make allotment for development of an industrial area on
concessional terms and held that the purpose for which the
allotments were made might be well-meaning, but the
allotments, being contrary to the mandatory provisions of the
Act and the Rules were void and of no effect, being illegal.
38. Similarly, in the present case, the action of the
Development Authority in permitting mixed user was in
apparent violation of the statutory provisions in the Master
Plan.
39. Establishment of banks and nursing homes in the
residential sectors meant for residential use alone is
unequivocal violation of the statutory provisions in the Master
Plan.
40. Reverting to the case in hand, we may notice that the
lease deed executed in favour of the predecessor-in-interest of
R.K. Mittal and the other appellants had contained specific
stipulations that the lessee will obey and submit to all
directions issued, existing or thereafter to exist, as obeyed by
the lessor. The erection of the structure was also to be in
accordance with the approved plans. Clause (h) of the lease
39
deed specifically provides that the constructed building shall be
used only for the purpose of residential, residential-cum-
medical or surgical clinic and for no other purpose, that too
subject to such terms as are imposed by the lessor.
41. The transfer deed which was executed in favour of the
present appellants, with the approval of the Development
Authority, also contained similar clauses and also provided
that the terms and conditions imposed by Development
Authority from time to time shall be binding on the transferee.
Clause 15 of the transfer deed stipulated that the transferee
shall put the property to use exclusively for residential purpose
and shall not use it for any purpose other than residential.
After raising the construction on the plot in question,
admittedly, the appellants have put the property to a different
use other than residential. The property was rented out to two
different commercial undertakings, i.e., Andhra Bank and a
company by the name `Akariti Infotech'. It is not even the case
of the appellants before us that the Development Authority had
granted any specific permission to them to use the property for
any purpose other than residential.
42. The appellants, in fact, have relied upon an agenda
note where there was a proposal put forward by the
40
Development Authority to grant permission for nursing home,
guest house, lodging house, banks etc. on a 100 metres wide
road on such terms and conditions as may be imposed by the
Development Authority. This also provided for levying certain
additional charges for granting such permission. Based on this
proposal, it is stated that a public notice was issued and
objections were invited.
43. The matter rested at that. This was not finalized. In
other words, no final decision was taken by the Development
Authority in consonance with the provisions of the Act to
permit such user in the residential sector. We, in fact, are
unable to understand why such action was initiated by the
authorities concerned, in face of the statutory provisions of the
Act, Regulations and the Master Plan in force. It is a settled
position of law that no authority can exercise the power vested
in it, contrary to law. In the present case, there appears to be
no proper data collected or study carried out by the
Development Authority even for mooting such a proposal,
much less amending the Plan or the Regulations. It is a
matter of regret that the Development Authority is dealing with
such serious matters in such a casual manner. Either way,
this certainly affected the rights of the parties adversely. It is
41
not only the rights of individuals which are to be examined by
the authorities concerned, but also the effect of such
amendment on the residential sector as a whole which is one of
the relevant factors to be considered.
44. The running of a bank or a commercial business by a
company in the residential sector is certainly not permissible.
In fact, it is in patent violation of the Master Plan, Regulations
and the provisions of the Act. We see no power vested in the
Development Authority to permit such user and ignore the
misuse for such a long period.
45. We may notice that only in two cases i.e. Oriental Bank
of Commerce (Sector 27, Noida) and Vijaya Bank (Sector-19,
Noida), the permission for running a bank in the residential
sector was granted for a period of five years and three years,
respectively. This permission came to end few years back and
was admittedly never renewed or extended. Even this initial
grant of permission is a case of lack of legal authority and is
contrary to the provisions of law. It is not the case of anyone
before us that the Development Authority had granted
permission for running a bank/commercial activity or nursing
home in the residential sector. A survey had been conducted
under the orders of the Court dated 3rd March, 2011. As per
42
this survey, a number of banks and nursing homes were being
run in the residential sector, which was not permissible.
46. The conduct of the authorities, prior to institution of
the writ petitions in the High Court, showed uncertainty and
wavering of mind in its decision-making processes. In fact, it
was expected of the Development Authority to take a firm and
final decision and put at rest the unnecessary controversy
raised by its proposal. However, once the writ petitions were
filed, thereafter, the stand of the Development Authority has
been consistent and unambiguous. In the counter affidavit
filed in this Court, it has been stated that even in case of grant
of permission to the above stated two banks, no extension was
granted and in fact show cause notices have been issued to all
the banks in the residential sector to wind up their activities
and move out of the residential sector. It is the definite case of
the Development Authority that banking activity is a
commercial activity and therefore, cannot be carried on in the
residential sector, more particularly on the plots in question.
In regard to Sector 19, a specific averment has been made in
the affidavit of the Development Authority that the land use is
residential alone and is neither commercial nor mixed. As per
the Master Plan, its primary use is `residential' where plots are
43
planned for residential purpose alone. It is, therefore,
abundantly clear from the pleadings on record that commercial
activity of any kind in the residential sector is impermissible.
These pleadings are in conformity with the statutory provisions
and the Master Plan.
47. All the cases where banks, nursing homes or any
commercial activity is being carried on, particularly like the
appellants' case, where a bank and company are running their
offices in the residential sectors would amount to change of
user and thus be impermissible. The officers of the
Development Authority should refrain from carving out
exceptions to the implementation of the Master Plan and the
Regulations in force, that too without the authority of law. For
taking up any exercise for change of user or such similar
conditions, amendment to the relevant Regulations, Master
Plan and if needed, the provisions of the Act, is a condition
precedent. It should be ensured that such exercise would
further the cause and object of the Act and would not be
destructive to the scheme of the development. We have no
hesitation in our minds in holding that no such jurisdiction or
authority vests in the officers of the Development Authority to
permit change of user in its discretion and in violation of the
44
law in force.
48. Another important aspect is that the Development
Authority had taken a policy decision and had earmarked
specific areas where land was made available to the banks to
carry on their commercial activities in the commercial pockets
of the industrial or institutional sectors. This land was being
provided at a concessional rate and a number of banks had
taken advantage of this scheme to get the lands allotted to
them in the appropriate sectors. They have been given lands in
the commercial and even in the commercial pockets of the
industrial or institutional sector. However, the 21 banks
functioning in the residential sectors have not even opted to
apply under the said scheme. If they would apply, the
Development Authority has taken onto itself to consider the
same sympathetically. This Scheme was opened on 20th June,
2011 and closed on 11th July, 2011. 26 commercial plots were
offered for allotment under this Scheme in different sectors and
plots were even reserved to be used as banks. In other words,
the Development Authority has provided due opportunity to
these banks to shift their activities to the appropriate sectors,
however, to no effect. Despite issuance of show cause notices
and offer to allot alternative plots, the unauthorized use by the
45
appellant - banks and nursing homes have persisted in the
residential sectors.
49. Another case which is required to be noticed by us
from amongst the number of cases listed, is the case of
Chairman and Chief Executive Officer, New Okhla Industrial
Development Authority & Anr. v. Mange Ram Sharma & Anr.,
SLP (C) No. 24029/2005. In this case, according to the
Development Authority, the lessee is running a 20 bedded
hospital with all modern and diagnostic facilities, admitted by
the lessee and his family members in a letter Annexure P-7 to
the authorities. In this letter they had claimed that the
hospital is being run from the premises in question and had all
the modern facilities. However, these facts are not admitted by
the lessee who have tried to explain that letter by stating that
in a three-storeyed building of 400 square metres, they are
carrying on professional activity of medical consultancy only in
an area of 28.42 square metres on the ground floor and rest of
the premises is being used entirely for residential purposes. It
is also denied that any hospital is being run from the premises.
According to them, the order dated 15th October, 1994
terminating the lease is contrary to law and they have also
submitted an undertaking that the premises will not be used
46
for any purpose other than residential. According to the
applicant/respondent in terms of the lease deed, such a user is
permissible. The respondents being doctors, are carrying out
their professional activity in a limited portion and as such, they
have also placed on record a list of hospitals being operated
from residential blocks which have even been empanelled by
the appellant Development Authority. The Development
Authority is acting arbitrarily and not taking any action against
those persons, though they have executed the lease deed with
the same terms and conditions as the appellant's. In this case,
this Court had appointed a local Commissioner to visit the
premises. As per report of the Commissioner dated
20thSeptember, 2003, the premises in question is a corner plot
in front of 30 metres wide road and had two gates. There is a
sign board displaying `Sharma Clinic and Medical Surgical
Centre'. Names of the doctors have also been displayed on the
sign boards on the boundary wall. There is a reception
counter which is attended to by a nurse. On ground floor, the
basement was still under construction. Major part of the
ground floor was being used as medical clinic. There were four
cabins used by different doctors of different specialties. The
first floor is being used for residential purposes. The second
47
floor is being partly used for residential purposes while there is
also an office on that floor. None of the parties had filed
objections to this report of the Local Commissioner and,
therefore, there is no reason for us not to accept the same.
Even as per the report of the Local Commissioner, the house is
being used for medical-cum-surgical clinic and is not merely a
consultant's clinic. Use of a major part of the ground floor for
running the medical centre obviously is not permissible in
accordance with the provisions of the Act and the Regulations.
The Development Authority is expected to take proper action at
the earliest. Even if we reject the case of the appellant
Development Authority that a 20 bedded hospital is being run
from the premise, still the fact stands established on record
that practically the entire ground floor and part of the second
floor is being used for activities other than residential.
50. According to the respondents, they had not been served
with the show cause notice, though according to the appellant,
show cause notice dated 29th August, 1992 was issued and
thereafter, the order of termination/cancellation of lease had
been passed against the respondents. This order had been set
aside by the High Court and the Development Authority has
come up in appeal before this Court.
48
51. In the light of what we have discussed above, even on
facts of this case, running of a hospital or even a medical clinic
of this dimension cannot be permitted in a residential area. It
would be different if a doctor uses permissible part of the
premises for clinical purposes i.e. to meet or examine his
patients in any portion. For surgery or specific treatments,
such patients would have been addressed to proper nursing
homes or regular hospitals. Therefore, doctors cannot carry on,
in the garb of a medical clinic, a regular medical and surgical
activity on a commercial scale. Thus, we find that action of the
Development Authority was justifiable.
52. One of the allegations against the Development
Authority is that they have acted arbitrarily and
discriminatorily in issuance of notices, in passing of orders of
cancellation of the lease deed and/or even in imposing other
restrictions in relation to the properties in question. It is their
contention that commercial activity, nursing homes and banks
are operating in a large number of residential houses but the
Development Authority has adopted a policy of pick and choose
and has not acted uniformly even in that regard. Certain
instances have been mentioned. Instances of banks have been
mentioned in the case of R.K. Mittal (supra), while nursing
49
homes have been mentioned in the case of Mange Ram (supra).
We are unable to grant approval to this discriminatory policy of
the Development Authority. They are expected to act fairly and
judiciously in such matters. The action of the Development
Authority should be free of arbitrariness and must be applied
uniformly. The ground of legitimate expectation taken by the
lessees on the premise that public notice had been issued by
the Development Authority proposing to permit mixed user in
the residential sector binds the Authority. Firstly, the action of
the Development Authority in issuing the notices is not in
accordance with law. Secondly, this argument is without any
substance and is misconceived. The doctrine of reasonable
expectation has no applicability to the present case and there
cannot be any waiver of statutory provisions as well. The user
of a sector is provided under the Master Plan and in
furtherance to Regulations and the provisions of the Act. It is
incapable of being administratively or executively altered. The
lessees, who have changed the user contrary to law, are liable
to be proceeded against as per the terms of the lease deed and
the provisions of the Act.
53. The Master Plan and the Zonal plan specify the user as
residential and therefore these plots cannot be used for any
50
other purpose. The Plans have a binding effect in law. If the
scheme/Master Plan is being nullified by arbitrary acts and in
excess and derogation of the power of the Development
Authority under law, the Court will intervene and would direct
such authorities to take appropriate action and wherever
necessary even quash the orders of the public authorities. This
Court in the case of K. Ramadas Shenoy v. Chief Officer, Town
Municipal Council, Udipi and Others [(1976) 1 SCC 24] was
concerned with the resolution of the Municipal Committee to
construct a cinema theatre at place where earlier the
permission was granted for construction of Kalyan Mandap
cum-Lecture Hall and the contention before the Court was that
town planning scheme forbade any cinema building at the
place asked for and therefore, the resolution of the committee
was invalid. This Court accepted the contention and while
setting aside the resolution observed that an illegal
construction of a cinema building materially affected the right
to enjoyment of the property of the persons residing in the
residential area and there being unauthorized construction, the
Court would intervene and quash the resolution of the
Municipality. This view was followed in the case of M.I.
Builders v. Radhey Shyam Sahu [(1999) 6 SCC 464], wherein
51
this Court even directed demolition of unauthorized
constructions. At this stage, we may also refer to the judgment
of this Court in the case of Virender Gaur & Ors. v. State of
Haryana & Ors. [(1995) 2 SCC 577], wherein this Court was
concerned with the issue whether Dharmshala should be
permitted to be constructed upon the land which was reserved
as open space under the plan. This Court, while noticing the
impact on environment, right to hygienic environment and
protection of the residents, observed as under:-
"11. It is seen that the open lands, vested in the
Municipality, were meant for the public amenity to
the residents of the locality to maintain ecology,
sanitation, recreation, playground and ventilation
purposes. The buildings directed to be constructed
necessarily affect the health and the environment
adversely, sanitation and other effects on the
residents in the locality. Therefore, the order
passed by the Government and the action taken
pursuant thereto by the Municipality would clearly
defeat the purpose of the scheme. Shri D.V. Sehgal,
learned Senior Counsel, again contended that two
decades have passed by and that, therefore, the
Municipality is entitled to use the land for any
purpose. We are unable to accept the self-
destructive argument to put a premium on
inaction. The land having been taken from the
citizens for a public purpose, the Municipality is
required to use the land for the protection or
preservation of hygienic conditions of the local
residents in particular and the people in general
and not for any other purpose. Equally acceptance
of the argument of Shri V.C. Mahajan encourages
pre-emptive action and conduct, deliberately
chartered out to frustrate the proceedings and to
52
make the result fait accompli. We are unable to
accept the argument of fait accompli on the
touchstone of prospective operation of our order."
54. An ancillary question that comes up for consideration
is as to how much area can be permitted to be used by a doctor
to run his clinic or by a lawyer or architect to run their offices
in the residential sector. If other conditions are satisfied, then
as the law stands today, according to the Development
Authority, they can be permitted to use 30 per cent of the Floor
Area Ratio (FAR) of the ground floor for their clinics/offices.
Reference can also be made to the judgment of this Court in
the case of Delhi Pradesh Citizen Council Vs. Union of India &
Anr. [(2006) 6 SCC 305] wherein similar directions were issued.
We are not only relying upon the precedents of this Court, but
such an approach would also be permissible in face of the
Regulations, terms and conditions of the lease deed executed
by the parties and the Master Plan. It would, therefore, be
suffice if 30 per cent of the ground floor area is permitted to be
used for office of an architect/lawyer and for clinic simplicitor
by a doctor.
55. From the above dictum of this Court, it is clear that
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environmental impact, convenience of the residents and
ecological impact are relevant considerations for the Courts
while deciding such an issue. The law imposes an obligation
upon the Development Authority to strictly adhere to the plan,
regulations and the provisions of the Act. Thus, it cannot ignore
its fundamental duty by doing acts impermissible in law.
There is not even an iota of reason stated in the affidavits filed
on behalf of the Development Authority as to why the public
notice had been issued without amending the relevant
provisions that too without following the procedure prescribed
under law. The concept of public accountability and
performance of public duties in accordance with law and for the
larger public good are applicable to statutory bodies as well as
to the authorities functioning therein. We find no justification,
whatsoever, for the respondents to act arbitrarily in treating
equals who are similarly placed as unequals. There is also no
justification for the Development Authority to issue a public
notice in the fashion in which it has done. A few officers of the
Development Authority cannot collectively act in violation of the
law and frustrate the very object and purpose of the Master
Plan in force, Regulations and provisions of the Act.
54
56. For the reasons afore-recorded, we would dispose of the
appeals of the Development Authority, the
appellants/occupiers/ lessees, interveners and occupants in
the following terms:-
1. That banking or nursing homes or any other commercial
activity is not permitted in Sector 19 and for that matter,
in any sector, in the Development Area earmarked for
`residential use'.
2. That the 21 banks and the nursing homes, which are
operating in Sector 19 or any other residential sector,
shall close their activity forthwith, stop misuse and put
the premises to residential use alone, within two months
from the date of pronouncement of this judgment.
3. That lessees of the plots shall ensure that the occupant
banks, nursing homes, companies or persons carrying on
any commercial activity in the residential sector should
stop such activity and shift the same to the appropriate
sectors i.e. commercial, commercial pockets in industrial/
institutional area and specified pockets for commercial
use within the residential sector, strictly earmarked for
55
that activity in the development Plan, Regulations and
provisions of the Act.
4. That the Development Authority shall consider the
request for allotment of alternative spaces to the banks
and the persons carrying on other commercial activities,
with priority and expeditiousness.
5. That the Doctors, Lawyers and Architects can use 30 per
cent of the area on the ground floor in their premises in
residential sector for running their clinics/offices.
6. That for such use, the lawyers, architects and doctors
shall be liable to pay such charges as may be determined
by the Development Authority in accordance with law and
after granting an opportunity of being heard. The affected
parties would be at liberty to raise objections before the
Development Authority that no charges are payable for
such users as per the law in force.
7. In the event the lessee or the occupant fails to stop the
offending activity and/or shift to alternate premises within
the time granted in this judgment. The Development
Authority shall seal the premises and proceed to cancel
56
the lease deed without any further delay, where it has not
already cancelled the lease deed.
8. Wherever the Development Authority has already passed
the orders cancelling the lease deeds, such orders shall be
kept in abeyance for a period of two months from today.
In the event the misuse is not stopped within a period of
two months in terms of this judgment, then besides
sealing of the premises, these orders of cancellation shall
stand automatically revived and would come into force
without further reference to any Court. In the event the
misuse is completely stopped in all respects, the orders
passed by the authorities shall stand quashed and the
property would stand restored to the lessees.
9. These orders shall apply to all cases, where the order of
termination of lease has been passed by the Development
Authority irrespective of whether the same has been
quashed and/or writs of the lessees dismissed by any
Court of competent jurisdiction and even if such judgment
is in appeal before this Court.
10.The orders in terms of this judgment shall be passed by
an officer not below the rank of Commissioner. This
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order shall be passed after giving an opportunity to the
parties of being heard by such officer. This direction shall
relate only to the determination of charges, if any, payable
by the lessee or occupant for the period when the
commercial activity was being carried on in the premises
in question.
57. The appeals are disposed of in the above terms, with no
order as to costs.
...................................J.
(Swatanter Kumar)
...................................J.
(Ranjana Prakash Desai)
New Delhi;
December 05, 2011Tuesday, December 6, 2011
Shut banks, hospitals in Noida's residential areas: Supreme Court
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