Allahabad High Court
Kanpur Development Authority ... vs M/S Shipra Builder Pvt. Ltd. And ... on 7 October, 2013
Bench: Sanjay Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment Reserved on:20.09.2013
Judgment Delivered on:07.10.2013
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 260 of 2013
Petitioner :- Kanpur Development Authority Thru. Chairman And Anr.
Respondent :- M/S Shipra Builder Pvt. Ltd. And Anr.
Counsel for Petitioner :- Ramesh Upadhyay
Counsel for Respondent :- Swantantra Agrawal,M.K. Gupta,Niraj Tiwari,S.K.Tyagi
Hon'ble Sanjay Misra,J.
The respondents herein filed a Suit No.2442 of 2012 (M/s Shipra Builders Pvt. Ltd. and another Vs. Kanpur Development Authority and another) before the Civil Judge (Sr. Division) Kanpur Nagar praying for the following reliefs:-
"(d) ;g fd oknhx.k ds i{k esa og izfroknhx.k ds fo:| ;g funsZ'kkRed vkKkIrh ikfjr djsa fd izfroknhx.k Hkw[k.M la0 336] 337] 338] 345] 350 o 352 fouk;diqj ds'koiqje vks Cykd dkuiqj uxj dh lEifRr ij ,Q0,0vkj0 dz; gsrq izkIr dh x;h /kujkf'k [email protected]@2011 ds vuqdze esa vkxeu i= dk fuxZrhdj.k oknhx.k ds i{k esa djsaA
([k) ;g fd oknhx.k ds i{k esa izfroknhx.k ds fo:| LFkk;h fu"ks/kkKk dh fMdzh ikfjr djsa fd izfroknhx.k vkjkth la0 336] 337] 338] 345] 350 o 352 fouk;diqj ds'koiqje vks Cykd dkuiqj uxj esa Lohd`r Hkou ekufp= 10 ryksa ds vykok nks ryksa ds fuekZ.k gsrq ,Q0,0vkj0 dh vkxf.kr /kujkf'k ds izdj.k esa izfroknhx.kksa ds ;gka ij vafre :i ls fuLrkj.k rd dh fLFkfr esa blds 'kkafriw.kZ (x) ;g fd oknhx.k dks izfroknhx.k ls okn O;; fnyok;k tk;sA
(/k) ;g fd oknhx.k dks vU; dksbZ mi'ke ftls fd izfroknhx.k ls U;k;ky; vko';d ,oa mfpr le>rh gks fnyok;s tkus dh d`ik djsaaA "
They also filed an application under Order 39 Rule 1 and 2 CPC (Paper No.6C) for grant of a temporary injunction. The Trial Court on 24.12.2012 restrained the Kanpur Development Authority from demolishing the constructions raised by the plaintiff on Araji Nos.336, 337, 338, 345, 350 and 352 Vinayakpur, Kanpur Nagar. Thereafter the Kanpur Development Authority passed an order dated 04.01.2013 under Section 28-A of the U.P. Urban Planning and Development Act and the building was sealed on the same date. The plaintiff protested the action taken by the Kanpur Development Authority and filed an application dated 05.01.2013 before the Court praying that the seal be opened and proceedings for contempt be initiated. A similar application was also filed by the plaintiff on 15.01.2013. The Kanpur Development Authority filed its objections to both the applications where upon the Trial Court passed an order dated 21.01.2013 directing the Kanpur Development Authority to remove the seal and file compliance report by the next date fixed in the case.
This writ petition was then filed by the Kanpur Development Authority (defendant of suit) praying for the following reliefs:-
"(A) Issue a writ, order or direction in the nature of prohibition and the Civil Judge, Senior Division, Kanpur be prohibited from hearing of case no.2442 of 2012.
(B) Issue a writ, order or direction in the nature of certiorari and the order dated 21.01.2013 (Annexure No.-13) to the present writ petition) directing opening of the sealing be quashed.
(C) Issue any other suitable writ, order or direction as deem fit and proper in the facts and circumstance of the case.
(D) To award the cost of the petition in favour of the petitioner."
The precise submission of Sri Ramesh Upadhya, learned counsel for the petitioner ( Kanpur Development Authority) is that the Civil Court has no jurisdiction in matters relating to orders passed under the U.P. Urban Planning and Development Act (hereinafter referred to as the Act) pertaining to unauthorized constructions. According to him the order dated 24.12.2012 of the Trial Court did not give any direction to not seal the premises and that the order dated 24.12.2012 has been misread by the Trial Court where it has passed the subsequent order dated 21.01.2013.
Sri S.K. Tyagi, learned counsel for the respondents (plaintiffs) has submitted that the respondents on the basis of a sanctioned map had constructed the building (Group Housing Scheme) of ten floors. They applied for compounding since the eleventh and twelfth floor was also constructed and some anomalies were detected in the constructions of the eighth floor to tenth floor. He states that the respondent deposited a sum of Rs.59,000/- on 20.05.2011 as the requisite fee and by a letter dated 20.05.2011 the Kanpur Development Authority asked them to deposit the requisite charges for compounding where after another sum of Rs.2,00,000/- was deposited on 28.07.2012. Since the exact amount was not communicated even on expiry of 90 days hence in light of the bye-laws the revised plan was deemed to have been sanctioned. According to him when the Kanpur Development Authority threatened demolition and lodged an FIR on 01.12.2012 the respondents had to file the instant suit and apply for interim injunction from the Civil Court.
The temporary injunction order dated 24.12.2012 passed by the Trial Court is quoted hereunder:-
"24&12&2012%& i=koyh izLrqr gq;hA mHk; i{k mifLFkr gSA izfroknh dh vksj ls 36x nj[kkLr vkt dh frfFk eqYroh fd;s tkus gsrq fn;k x;k gS] tcfd oknh dh vksj ls 06x izkFkZuki= ij vkt gh lquokbZ fd;s tkus dh izkFkZuk dh x;hA
lquk x;k ,oa i=koyh dk ifj'khyu fd;k x;kA
i=koyh ds ifj'khyu ls fofnr gksrk gS fd foxr frfFk fnukad 22&12&2012 dk izfroknh dks ;g funsZ'k fn;k x;k Fkk fd og viuh vkifRr vkt fnukad 24&12&2012 rd izLrqr djs fdUrq izfroknh }kjk viuh vkifRr izLrqr ugh dh x;h gS rFkk oknh us 37x 'kiFk i= bl vk'k; dks fn;k gS fd izfroknh i{k ds fu;eksa ds vuq:i gh Hkou fufeZr gS rFkk 80 fQV jksM dh vfuok;Zrk ds lEcU/k esa oknh dh vksj ls ;g dgk x;k gS fd mlus 75 fQV Hkwfe tks lsV cSd ds fy;s NksM+h gS mlesa ls lM+d ds fy;s ns nsxkA
6x izkFkZuki= esa oknh }kjk ;g izkFkZuk dh x;h gS fd izfroknh dks fuf"k) dj fn;k tk; fd vkjkth la[;k 336] 337] 338] 345] 350] 352 fouk;diqj] dkuiqj uxj esa Lohd`r ekufp= ds vuqlkj djk;s tk jgs fuekZ.k esa lhtj o /oLrhdj.k dh dk;Zokgh u djsaA
oknh }kjk vius dFku ds leFkZu esa ikllqnk uD'kk] ekufp= izkIr Qhl tek fd;k x;k gSA
izfroknh dh vksj ls mifLFkr vf/koDrk }kjk ;g Lohdkj fd;k x;k gS fd oknh }kjk Hkou dk fuekZ.k djk;k x;k gSA ;fn izfroknh Hkou dks /oLr djkus esa lQy gks x;k rks okn dk mn~ns'; foQy gks tk;sxk vr% vfxze fu;r frfFk rd izfroknh dks funsZf'kr fd;k tkrk gS fd fookfnr lEifRr dks /oLr u djsA izfroknh dks Hkh funsZf'kr fd;k tkrk gS fd vfxze fu;r frfFk rd viuh vkifRr nkf[ky djsaA okLrs vkifRr fuLrkj.k 06x i=koyh fnukad 25 tuojh 2012 dks is'k gksA
y?kqokn U;k;k/kh'[email protected] tt ¼lh-fM-½
dkuiqj uxjA "
The reason given for grant of temporary injunction is that in case the demolition is carried out then the very purpose of the suit shall be frustrated. From this reasoning it is clear that the temporary injunction was granted against the defendants not to demolish the disputed property. In the temporary injunction application 6-C a prayer had also been made against sealing the property but no such order was passed by the Trial Court.
The impugned order dated 21.01.2013 has been passed on application 39-C under Section 151 CPC and has directed opening of the seal put by Kanpur Development Authority on the alleged unauthorized constructions. To adjudge its legality the reasons given therein by the Trial Court have to be weighed on the facts of the case and whether the three essential ingredients for grant of a temporary injunction were required to be considered and made out while issuing the direction to open the seal.
A perusal of the impugned order dated 21.01.2013 indicates that the Trial Court to reach upon a conclusion considered the following facts.:-
(1) The temporary injunction dated 24.12.2012 was issued by the earlier Presiding Officer after he gave opportunity to the defendants and upon considering the material on record.
(2) The sealing order dated 04.01.2013 was passed by the Kanpur Development Authority who had full knowledge about the pendency of the suit and the temporary injunction order dated 24.12.2012.
(3) The reference made in the sealing order dated 04.01.2013 to a show cause notice is mentioned as dated 01.12.2013 which date has not yet come.
(4) The plaintiff has deposited Rs.59,000/- as requisite fee (token money) on 20.05.2011 and a further sum of Rs.2,00,000/- on 28.07.2012 for sanction of revised plan and purchase of FAR area.
(5) The notice dated 20.05.2011 issued by the Kanpur Development Authority calling upon the plaintiff to attend the office indicates that the date initially fixed was cut and changed.
(6) The plaintiff's liability for the above sanction and purchase would be about Rs. one Crore or more and he has issued a bankers cheque of 25% i.e. Rs.30,00,000/- which he has deposited in the court and the defendant ( Kanpur Development Authority) can collect the same from the court.
(7) In view of the affidavit filed by the plaintiff it is evident that at the time of passing the temporary injunction order dated 24.12.2011 the earlier Presiding Officer had orally observed that all the reliefs claimed in the temporary injunction application are covered in the said order dated 24.12.2012.
(8) Since the defendant ( Kanpur Development Authority) has not disputed the averments of the affidavit of the plaintiff and has initiated sealing it would be a contempt hence the sealing order dated 04.01.2013 has to be stayed and the status as it existed on 24.12.2012 has to be restored.
On the above facts narrated in the impugned order dated 21.01.2013 the Trial Court directed the defendant ( Kanpur Development Authority) to remove the seal it had put on the twelfth floor and report compliance.
An act of demolition can have very adverse consequences for a plaintiff. In a Group Housing Scheme the Builder has other contractual obligations towards persons who are not parties to the litigation. But under the Act the Authority has the power to order demolition of a building for valid reasons and also to stop development if it is in contravention or without approval or permission. For that a procedure has been detailed and it has to be in accordance with law. The present grievance of the petitioner herein is against the order dated 21.01.2013 passed by the Trial Court directing removal of the seal from the premises.
Under Section 28-A of the Act there is power conferred on the Authority to seal unauthorised development which shall be lawful. Such order can be passed at any time before or after making an order for removal or discontinuance of any development. In the present case there is no order available on record to indicate that any order for removal has been passed by the Authority .
Be that as it may the impugned order dated 21.01.2013 is to be seen. The order itself discloses that there was no injunction on sealing of the premises. The injunction was on demolition. An oral observation alleged to have been made by a previous Presiding Officer is the sole basis to issue the direction in the nature of injunction on 21.01.2013. This oral observation was put forward by the plaintiff-respondent in an affidavit filed by him before the Trial Court. The Trial Court has passed the order for the following reasons which is quoted hereunder:-
"mijksDr lEiw.kZ foospuk ds vk/kkj ij ;g Li"V gS fd ekeyk U;k;ky; esa fopkjk/khu Fkk vkSj iwoZorhZ U;k;ky; }kjk fnukad 24-12-12 dks vUrfje fu"ks/kkKk dk vkns'k /oLrhdj.k u djus ds lEcU/k esa ikfjr fd;s x;s Fks vkSj oknh us Li"V :i ls l'kiFk dFku fd;k gS fd iwoZorhZ U;k;ky; }kjk i{kksa dh mifLFkr esa ekSf[kd :i ls U;k;ky; }kjk ;g vkns'k fn;k x;k Fkk fd /oLrhdj.k dh dk;Zokgh ds fu"ks/khdj.k esa vLFkkbZ O;kns'k izkFkZuk i= esa ekaxs x;s vuqrks"k vUrfje :i ls doj gksrk gSA ;fn mlds ckotwn Hkh izfroknhx.k lhtj dh dk;Zokgh djrs gS rks vkosnu i= nsus ij vfoyEc lhtj dh dk;Zokgh dks U;k;ky; dh voekuuk ekurs gq, [kqyok fn;k tk;sxkA ftldk Li"V [k.Mu izfroknh dh vkifRr o izfr 'kiFki= esa ugh gSA ,slh fLFkfr esa ekuuh; loksZPp U;k;ky; o ekuuh; mPp U;k;ky; bykgkckn dh mDr fof/k O;oLFkkvksa ds vk/kkj ij fookfnr lEifRr dh] vkns'k fnukad 24-12-12 dks ikfjr gksus ds le; dh] iwoZ fLFkfr dks cgky djus ds fy, izfroknhx.k }kjk nkSjku okn ikfjr lhy vkns'k fnukad 4-1-13 dk fdz;kUo;u LFkfxr fd;s tkus vkSj fookfnr lEifRr ds 12os ry ij yxk;s x;s lhy dks gVk;s tkus ds fy, izfroknhx.k dks funsZ'k fn;k tkuk U;k;ksfpr izrhr gksrk gSA "
The Trial Court has placed reliance on the decision of the Supreme Court in the cases reported in AIR 1997 SC 1240, AIR 1995 SC 1084, AIR 2011 SC 1989, 2008(72) ALR 530 and 2003(1) ARC 108, 2006 (64) ALR 330 of this Court while passing the impugned order. In these cases the law laid down was regarding violation of an injunction order and restoring the position as it existed on the date the injunction was granted by the Court. There can be no dispute on the law laid down. What has to be seen is whether the said decisions would apply to the facts and circumstance of the present case.
The consequences of an order passed under Section 28-A of the Act directing the sealing of the premises where unauthorised constructions are alleged is that further construction cannot be raised. The aggrieved party then is to be noticed in case demolition is to be ordered under Section 27 of the Act. In the present case no such notice for demolition has yet been given. The notice informs that the unauthorized constructions are in violation of Section 14 and 15 of the Act which pertains to development in accordance with the plan and permission. Therefore it is a stage where the Kanpur Development Authority has stopped constructions alleged by it to be unauthorised and the plaintiff-respondent is yet to be heard on his defence and take permission. The mere fact that some monies for compounding have been deposited by the plaintiff-respondent does not mean that compounding order has been passed.
In fact in the notice dated 20.05.2011 the Kanpur Development Authority clearly invited the plaintiff to provide information as required under Section 15(3) of the Act. This notice also stipulated that in case the revision plan is approved then further deposit of amount may be required. This notice cannot be interpreted to mean that the revised plan has been sanctioned since 90 days have expired and no decision has been taken by the Kanpur Development Authority. Section 15-A(1) proviso of the Act is a deeming proviso applicable only when permission has been granted and notice of completion is given in writing but the authority fails to grant completion certificate. In the present case no permission was granted.
Therefore there was no eminent threat of demolition and the notice dated 20.05.2011 was only a notice to show cause and provide further information. The observation of the Trial Court in the order dated 24.12.2012 that if demolition is carried out then the very purpose of the suit will be defeated is an observation not supported on facts of the case but an apprehension of the plaintiff.
In the present case there is no order for demolition. After the order dated 24.12.2012 an order dated 04.01.2013 was passed which is itself quoted hereunder:-
"ifjlj la[;k&345] 350] 352] 338] 336] 337] ekStk&fouk;diqj ds'koiqje] dkuiqj djk;s tk jgs vukf/kd`r fuekZ.k ds fo:) voj vfHk;Urk }kjk izLrqr izFke lwpuk fjiksZV ds vk/kkj ij dkj.k crkvksa uksfVl fnukad 01&12&2013 Hkstk x;k] tks fnukad 13&12&2012 dks izkIr fd;k x;kA {ks=h; voj vfHk;Urk }kjk iqu% voxr djk;k x;k gS] fd LFky ij Lohd`r ekufp= ds foijhr vukf/kd`r fuekZ.k dk;Z djk;k tk jgk gSA ekSds ij dk;Z cUn djus ds funsZ'kksa ds ckotwn fuekZ.k dk;Z cUn ugh fd;k tk jgk gSA ,slh n'kk esa ifjlj dks lhy djus dh laLrqfr dh xbZ gSA
eq>s mDr vk[;k ls larq"V u gksus dk dksbZ dkj.k ugh gSA ifjlj esa vfu;af=r fodkl gksuk fdlh Hkh izdkj ls mfpr ugh gS rFkk fuekZ.k m0iz0 uxj ;kstuk ,oa fodkl vf/kfu;e] 1973 ds micU/kksa rFkk /kkjk& [email protected] esa iznRr vuqKk ds foijhr gSA
vr% eSa] jkds'k dqekj ;kno mi uxj vk;qDr ¼izorZu tksu&2½ m0iz0 uxj ;kstuk ,oa fodkl vf/kfu;e] 1973 ds vUrxZr vf/klwpuk la[;k& [email protected]&v&1998&109&Mh0,[email protected] fnukad 30&11&98 m0iz0 fodkl izkf/kdj.k ¼vukf/kd`r fodkl dks lhy cUn fd;s tkus dh jhfr½ fu;ekoyh 1998 fu;e&4 ds vUrxZr vkns'k la[;k& [email protected]@[email protected]&13 fnukad 12&10&2012 ds }kjk iznRr 'kfDr;ksa dk mi;ksx djrs ifjlj la[;k& 345] 350] 338] 336] 337] ekStk&fouk;diqj ds'koiqje] dkuiqj dks lhy djus dk vkns'k nsrk gWwA mDr dk vuqikyu rRdky lqfuf'pr fd;k tk; d`r dk;Zokgh djds 'kh?kz vk[;k izLrqr dh tk;A
¼jkds'k dqekj ;kno½
mi uxj vk;qDr ¼izorZu tksu&2½"
This is not an order passed under Section 26 or Section 27 of the Act. Moreover this is not an order assailed in the suit which was filed earlier nor it is assailed even in this writ petition which was filed later.
Section 28-A of the Act in Clause (4) provides for an Appeal to the Chairman and Clause (5) provides that the decision of the Chairman shall be final. In the present case admittedly the order dated 04.01.2013 was passed by the Joint Secretary (Zone II) Kanpur Development Authority (Petitioner No.2) and it was an order under Rule 4 of the Neyamavali 1998 framed under the Act. The plaintiff-respondent has not availed the remedy under the Act against the order passed under Section 28-A of the Act but has filed the Civil Suit.
Therefore firstly the impugned order dated 21.01.2013 has been passed basing it on an oral observation of the previous Presiding Officer. Secondly when there was no notice for demolition but it was only to furnish information under Section 15(3) of the Act the Trial Court has erred in directing to open the seal. Thirdly when the sealing order dated 04.01.2013 under Section 28-A of the Act does not visit any adverse consequences like demolition it could not have been made a reason to direct the seal to be removed. Fourthly there was no order or direction in the order dated 24.12.2012 whereby the unauthorised construction could go on. Fifthly, the order dated 24.12.2012 did not restrain the Kanpur Development Authority to proceed in accordance with Section 28-A of the Act and sixthly the order dated 04.01.2013 passed under Section 28-A of the Act did not visit any adverse consequences like demolition on the plaintiff' since such order was not an order of demolition.
It appears from the impugned order dated 21.01.2013 that the Trial Court influenced its views for the reason that when demolition had been stayed on 24.12.2012 then no further proceedings could be continued by Kanpur Development Authority hence it has stayed the order dated 04.01.2013. This view appears to be unwarranted for the following reasons:-
a) The order dated 24.12.2012 only restrained Kanpur Development Authority from demolishing the new constructions on the apprehension of the plaintiff.
b) The oral observation of an earlier Presiding Officer could not be interpreted as an injunction order when that officer had passed the order dated 24.12.2012 in the case but had not granted any relief against sealing claimed as a relief by the plaintiff.
c) Demolition is authorised under Section 26 & 27 of the Act and no such notice was taken out by Kanpur Development Authority.
d) The new constructions were not sanctioned hence the impugned order dated 21.01.2013 amounts to permitting the plaintiff to continue with further constructions without sanction of the revised plan.
e) Unauthorized construction cannot be given sanction in law and by the impugned order dated 21.01.2013 a lawful act performed by Kanpur Development Authority under Section 28-A of the Act has been restrained.
f) The procedure prescribed under the Act against unauthorised construction is to be followed and only when an illegality is committed which is violative of the procedure prescribed can the courts interfere in it. Sealing was a lawful act under Section 28-A of the Act hence when no illegality was committed by Kanpur Development Authority the impugned order dated 21.01.2013 could not have been passed.
g) Deposit of requisite fee by the plaintiff was only pending consideration of his revised plan and no order of compounding had been passed so as to enable the Trial Court to hold the action under Section 28-A of the Act as warranting interference by issuing a direction in the nature of an injunction to remove the seal on the unauthorised construction.
h) Deposit of 25% i.e. Rs. 30,00,000/- by cheque in Court by the plaintiff on the basis of self assessment could not entitle the Trial Court to presume that the sealing is to be removed when it has not recorded any finding that the unauthorised constructions were regularized by Kanpur Development Authority. Moreover, the Trial Cort even otherwise cannot adorn to itself the role to be performed by the Kanpur Development Authority under the Act for sanction of building plans.
i)In light of the provisions of the Act dealing with unauthorised constructions the three ingredients necessary for grant of a temporary injunction have to be considered. The direction issued under the impugned order dated 21.01.2013 is in the nature of a temporary injunction but it has not considered the three essential ingredients while passing it.
j) Balance of convenience cannot be in favour of a person who is violating the statutory provisions. Sealing under Section 28-A of the Act cannot be said to cause irreparable loss to a person who has raised unauthorised construction and non sanction of the revised plan till that date did not show or establish a prima-facie case against sealing in favour of the plaintiff respondent.
The Trial Court has not considered any of the three essential ingredients while issuing the direction which are in the nature of a temporary injunction in light of the statutory provisions of the Act and the facts of the case. As such the impugned order passed on application Paper No.39C under Section 151 CPC exercising its inherent powers was not based on any valid reasons or grounds and it was an order having effect of restraining the petitioner (Kanpur Development Authority) in performance of its statutory duties under Section 28-A of the Act read with the Niyamawali, 1998.
The impugned order dated 21.01.2013 therefore cannot be upheld. It requires to be set aside. It is accordingly set aside.
The writ petition is allowed.
No order as to costs.
Order Date :- 7.10.2013
pawan
