Ajeet Singh Chauhan And 2 Ors vs The State Of U.P. And 4 Others
2015 Latest Caselaw 1790 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 29
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 19146 of 2015
 
Petitioner :- Ajeet Singh Chauhan And 2 Ors
 
Respondent :- The State Of U.P. And 4 Others
 
Counsel for Petitioner :- Rajeev Sawhney
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Vijay Prakash Pathak,J.

(Delivered by : Hon'ble V.K. Shukla, J.)

Ajeet Singh Chauhan and two others are before this Court with the request to quash the FIR dated 28.07.2015 registered as Case Crime No.0489 of 2015 under Sections 147, 332, 353, 420, 467, 468, 471, 504, 506 IPC, P.S. Sector-19 Noida, District Gautam Budh Nagar (Noida).

The factual situation that is so emerging in the present case is that a first information report has been lodged by respondent no.4-Bhagmal Singh, Junior Engineer Work Circle-3, Noida against the petitioners on 28.07.2015 at about 11:00 p.m. alleging the incident dated 28.07.2015, under Sections 147, 332, 353, 420, 467, 468, 471, 504, 506 IPC at Police Station Sector-49, Noida, Gautam Budh Nagar, which was registered as Case Crime No.0489 of 2015. From the reading of the First Information Report, the following allegations against the petitioners have been made:-

(i) Plot Khasra Nos. 1221, 1222, 1223, 1224 and 1227 of Village Baraula is in notified area of Noida Authority. On these Khasra numbers, the construction of building is being made without getting an sanction order.

(ii) The flats which are being made of the said land are being sold after making confusing advertisement and after deceiving the general public.

(iii) In Civil Misc. Writ Petition No.26869 of 2008, Phool Singh and others vs. State of U.P. and others, order passed by this Hon'ble Court is being violated and the construction is being made in violation of the order passed by this Hon'ble Court in the aforesaid writ petition.

(iv) On 28.07.2015, Sri Subhash Chand Yadav, Tehsildar, Noida, Sri R.S. Yadav, Project Engineer Work Circle-3, Sri Muneshwar Tyagi, Assistant Project Engineer Work Circle-3, Sri S.P. Singh, Police Inspector Noida, Sri Ajay Chauhan, Sub Inspector and other Police force of Noida Authority have gone on the spot and the construction work is stopped and during this course, the petitioners alongwith 5 to 7 persons having lathis has come and then have abused and manhandled and threatened to kill and made interference in public duty and also said that construction work ill not be stopped and what you want, you may do, as such they have committed offence under Sections 120-B, 147, 332, 335, 420, 504 and 506 IPC.

Petitioners are contending before this Court through their Senior Counsel- Shri H.R. Mishra, Advocate, ably assisted by Shri Rajeev Sawhney, Advocate that Officers of NOIDA Authority have transgressed and overstepped their jurisdiction in stopping constructions and petitioners have full freedom to make constructions on the spot and as such, to conceive of a situation that any offence has been committed by them, is too far fetched and accordingly, this Court should come to the rescue and reprieve of the petitioners.

Learned A.G.A. as well as counsel holding brief of Sri Shivam Yadav, Advocate representing NOIDA Authority jointly resisted the request made on behalf of petitioners by contending that petitioners have been carrying out constructions without their being any permission from the Authority and when attempt has been made to resist them from making such constructions, they have taken law into their own hands and as entire activity undertaken by petitioners is in conflict with law, this Court should not at all come to the rescue and reprieve of petitioners.

The New Okhla Industrial Development Authority (NOIDA) has been established under the provisions of U.P. Industrial Area Development Act, 1976 i.e. U.P. Act No.6 of 1976. Section 6 provides for function of Authority as follows:

6. (1) The object of the Authority shall be to secure the planned development of the industrial development areas.

(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 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 infrastructure 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.

Section 8 deals with power of Authority to issue directions in respect of erection of building as follows:

(1) For the purposes of proper planning and development of the industrial development area, the authority may issue such direction as it may consider necessary-

(a) architectural features of the elevation or frontage of any building;

(b) the alignment of buildings on any site;

(c) the restrictions and conditions in regard to open spaces to be maintained in and around buildings and height and character of buildings;

(d) the number of residential buildings that may be erected on any site;

(e) Regulations of erections of shops, workshops, warehouses, factories or buildings;

(f) maintenance of height and position of walls, fences, hedges or any other structure or architecture constructions;

(g) maintenance of amenities;

(h) restrictions of use of any site for a purpose other than that for which it has been allocated;

(i) the means to be provided for proper (i) drainage of waste water (ii) disposal of industrial waste, and (iii) disposal of town refuse.

(2) Every transferee shall comply with the directions issued under sub-section (1) and shall as expeditiously as possible erect and building or take such other steps as may be necessary to comply with such directions.

Section 9 of U.P. Act No.6 of 1976 is with regard to ban on erection of building in contravention of the Regulations i.e. no person shall erect any building in Industrial Development Area in contravention of any Building Regulation made under sub-section 2 of section 9 and sub-section 2 of section 9 empowers the Authority to make regulation to regulate erection of building after prior approval of the State Government. Section 9 of 1976 of the Act is being extracted below:

(1) No person shall erect or occupy any building in the industrial development area in contravention of any building regulation made under sub-section (2).

(2) The Authority may by notification and with prior approval of the State Government make regulations to regulate the erection of buildings and such regulations may provide for all or any of the following matters, namely,-

(a) The materials to be used for external and partition walls, roofs, floors and other parts of a buildings and their position or location or the method of construction;

(b) Lay out plan of the building whether industrial, commercial or residential;

(c) the height and slope of the roofs and floors of any building which is intended to be used for residential or cooking purposes;

(d) the ventilation in, or the space to be left about any building or part there of to secure circulation of air or for the prevention of fire;

(e) the number and height of the storeys of any building;

(f) the means to be provided for the ingress and egress to and form any building;

(g) the minimum dimensions of rooms intended for use as living rooms or sleeping rooms and the provisions of ventilation;

(h) any other matter in furtherance of the proper regulation of erection, completion and occupation of buildings and

(i) the certificates necessary and incidental to the submission of plans amended plans and completion reports.

Section 10 of the 1976 Act is with regard to power to require proper maintenance of site or building. It states to the effect that if it appears to the Authority that the condition or use of any site or building is prejudicially affecting or is likely to affect the proper planning of Authority or the amenities in any part of the Industrial Development Area or the interests of general public there, it may serve on the transferee or occupier of that site or building, a notice requiring him to take such steps and within such period as may be specified in the notice and thereafter to maintain it in such manner as may be specified therein and in case such transferee or occupier fails to take such steps or to maintain it thereafter, the Authority may itself take such steps or maintain it, and realize the cost incurred on it from such transferee or occupier.

Section 12 of 1976 Act proceeds to incorporate various provisions of U.P. Urban Planning and Development Act, 1973 such as provisions of Chapter VII and Sections 30, 32, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 53 and 58. Sections 16 of 1976 Act, empowers Chief Executive Officer to authorise any person to make entry in following terms; Section 16 is being extracted below:

The Chief Executive Officer may authorise any person to enter into or open any land or building with or without assistance, for the purposes of :-

(a) making any inquiry, inspection, measurement or survey or taking levels of such land or building.

(b) examining works under construction or of ascertaining the course or seweres or drains;

(c) ascertaining whether any building is being or has been erected or re-erected with out sanction or in contravention of any sanction given under this Act or the rules and regulations made thereunder and to take such measurements and do any such other acts as may be necessary for each purpose.

(d) doing any other thing necessary for the efficient administration of this act.

Provided that :-

(i) no such entry shall be made except between the hours of sunrise and sunset and without giving reasonable notice to the occupier or if there be not occupier, the owner of the land or building. Imposing of penalty mode of recovery of arrears Forfeiture for Breach of Conditions of transfer Penalty Power of entry etc.

(ii) sufficient opportunity shall in every instance, be given to enable women if any to with draw form such land or building.

(iii) due regard shall always be had, so far as may be compatible with the exigencies of the purpose for which the entry is made, to the social and religious usages of the occupants of the land or building entered.

Section 17 of 1976 of Act provides for overriding effect in the matter of development. Section 18 of 1976 Act authorises State Government to make Rules for carrying out the purposes of this Act. Section 19 of 1976 Act authorises the Authority to make Regulations with the previous approval of the State Government.

The NOIDA Authority has framed the Building Regulations and Directions, 2006 under the provisions of Section 9 read with Section 19 of the Act. Clause 1.3 of the said Regulation provides that said Regulation will be enforceable for the purpose of building activity within the urbanisable area of the NOIDA. Clause 1.3 of Building Regulations and Directions, 2006 is being quoted herein below:

"1.3 ;g uohu vks[kyk vkS|ksfxd fodkl {ks= ds uxjh; {ks= ds Hkhrj fdz;k-dyki ds fy;s ykxw gksxhA"

Thereafter the NOIDA Authority has framed New Okhla Industrial Development Area Building Regulations, 2010 under the provisions of Section 9 read with section 19 of the Act. Clause 1.3 and 1.5 of Chapter-I of the Noida Building Regulation, 2010 is being extracted below:

"1.3 Chapter I to IV shall apply to building activities within the urbanisable aera and Chapter V, shall apply to the area designated for agricultural use by the Authority.

1.5 Chapter VI shall apply to the plots allotment to the farmers against their land acquisition."

Clause 2.65 of said regulation reads as follows:

"2.65 'Urbanisable Area' means the area earmarked for any of the following uses in the Development Plan/Master Plan.

(i) Residential

(ii) Commercial

(iii) Industrial

(iv) Institutional

(v) Green area

(vi) Transportation, and

(vii) Any other Special uses as specified in the Development Plan/Master Plan/Scheme duly approved by the Authority."

Petitioners based on these provisions are submitting that land in question is village Abadi land and they do not require any map to be sanctioned.

Plots in question are situated in Sector 49 of NOIDA. Sector concept is introduced to define the structure of city. Land in question falls within the Industrial Development Area as defined under Section 2(d) of 1976 Act and in the Master Plan in question, same has been shown as village Abadi. The object of Authority under Section 6 is to secure planned development and in the said direction, the Authority has the right to regulate erection of buildings and to lay down the purpose for which a particular site or plot of land should be used, namely for industrial, commercial or residential purpose or any other specified purpose in such area. Under Section 8 of the Act, authority has been conferred to issue directions for the purposes of proper planning and development. Section 9 provides that no person shall erect or occupy any building in the industrial area in contravention of any building regulation made under sub-section (2).

For "Rural Abadi Site" to ensure its planned and co-ordinated development, regulations have been framed, known as New Okhala Industrial Developments Authority Rural Abadi Site (Identification, Control, Management and Regularization for Residential Purpose) Regulation, 2006. The said Regulations are inclusive of all such rural land which has been used as Abadi. In reference of Rural Abadi Site arrangements have been made to make survey and land plan, and the said plan has to be approved by Authority. Rural Abadi Sites are on the radar of Authority and to better regulate its planned co-ordinated development, amendments have been made and various amendments are underway. NOIDA Regulation 2010 takes care of building activity within the urbanisable area falling under Chapter I to IV, Chapter V applies to area designated for agricultural use by the Authority and Chapter VI applies to sites/plots allotted to farmers. Section 16 confers authority to enter into any land/building with or without assistance.

Planned and co-ordinated development is the soul of the Act, and under the scheme of things provided for, wherever opinion is formed, that any activity that is being carried out within the "Industrial Development Area", is dehors of planned and co-ordinated development, then authorities of the Authority are empowered to make entry subject to restrictions mentioned, and stop such constructions that defeats the purpose of planned and co-ordinated development. The Authorities, at such point of time, should inform of the action proposed in writing, giving opportunity to respond, and thereafter in case any response comes forward, then to take decision. In case notice is discharged well and good, and in case notice is not discharged, then incumbent can pursue the remedy available under law, but certainly incumbent will have no right to proceed with construction during this period. Within the "Industrial Development Area" be it "Rural Abadi Site", "Urbanized Area" or "any other site" one can not undertake building activity without clearance from NOIDA. If we accept the view suggested by petitioners, it would frustrate the very object of the Act.

Illegal construction by builders/colonisers has been on the radar of the Apex Court, and time and again, caution has been issued and directives have been issued that such matters should not be encouraged and should be dealt with by firm hand. Observation made by Apex Court in the case of Friends Colony Development Committee vs. State of Orissa 2004(8) SCC 733 provides for as follows:-

"Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfarefund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."

In the case of Priyanka Estates vs. State of Assam 2010 (2) SCC 27 same view has been reiterated as follows:-

"It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder.

Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, regulations and bye-laws are made by Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent."

Apex Court, in the case of, Shanti Sports Club vs. Union of India 2009 (15) SCC 705 has noted with concern, the construction being raised in blatant violation of planned and co-ordinated development as follows:

"In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government hasto spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208.

Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."

Thus raising of constructions dehors planned and co-ordinated development has always been a matter of concern and said situation has to be dealt with sternly and firmly by law enforcing agencies, without there being any compromise on the said score.

In the present case, the FIR in question contains recital of commission of cognizable offence and even photographs have been produced before us showing that flats are being constructed with impunity, thus changing the very nature and complex of "Village Abadi" and that too without any clearance from NOIDA Authorities and without the map having been sanctioned and once the law enforcing agency has informed the petitioners that constructions are illegal, then petitioners ought to have adhered to the said directives instead of coming to conflict with the law enforcing agencies.

Once criminal activity has been there on the spot, then to say that no offence, prima facie, is disclosed, is too far fetched and can not be accepted in the facts of the case.

Writ petition sans merit and is, accordingly dismissed.

Order Date :-13.08.2015

A. Pandey