Ashok Karnwal And Another vs State Of U.P.Through Secy. ...
2019 Latest Caselaw 5075 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 21.2.2019
 
Delivered on 28.5.2019
 
Court No. - 25
 
Case :- MISC. SINGLE No. - 4906 of 2006
 
Petitioner :- Ashok Karnwal And Another
 
Respondent :- State Of U.P.Through Secy. Housing And Urban Planning Lko
 
Counsel for Petitioner :- H.G.S.Parihar,Dharmendra Singh,Meenakshi Singh Parihar
 
Counsel for Respondent :- C.S.C.,B.K.Singh,K.Chandra
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard the learned counsel for the petitioners Sri Dharmendra Singh and Sri B.K. Singh for the respondent no. -7 and Sri Vivek Shukla, learned Additional Chief Standing Counsel appearing for the respondent nos. 1, 3 & 5.

2 The petitioners have challenged the order dated 30.1.2006 passed by the Prescribed Authority, Lucknow Development Authority (LDA) and the order dated 2.5.2006 passed by the Commissioner, Lucknow Division / Chairman, LDA and the order dated 14.9.2006 passed by the Secretary, Government of U.P. rejecting the Revision of the petitioners and also other orders dated 31.5.2006 and 9.5.2006 relating to closure of School being run by the petitioners over residential Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow.

3. The petitioner no. 1 is the Manager of the petitioner no. 2 which is St. Xavier's Day School allegedly established in 1989 as a Junior High School i.e. class VI to VIII and later on being given recognition under Section 9(4) of the U.P. Intermediate Education Act by the Government on 24.3.2010, is also running Classes IX, X, XI and XII.

4. It has been pleaded in the writ petition that the School has nearly 1000 students in classes from Pre Nursery upto Class X, most of the students admitted in the School are below the age of fourteen years and under the Right of Children to Free and Compulsory Education Act it is providing education to children in the age of six years to fourteen years and the School is infact carrying out constitutional responsibilities under Article 21-A of the Constitution that are cast upon the Government. It cannot be said that the petitioners are running a commercial activity.

5. However, by the order impugned, the Authorities have directed closure of the school and demolition of illegal construction raised on Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow.

6. It has been pleaded in the writ petition that the problem started when opposite party no. 7, namely Smt. Poonam Chaudhury made a complaint to the LDA of running of the School in a residential area as her husband had constructed a house on the adjacent Plot No. B-1/35. The LDA issued notice under Section 27(1) of the U.P. Urban Planning and Development Act thereafter.

7. It has been pleaded in the writ petition also in paragraphs 15 & 17 that the petitioners had applied in 1993 before the LDA for allotment of land for running a High School and a plot of 1000 square meters had been allotted by the LDA in Sector-J in the same Kanpur Road Scheme in 2001 which is being used only for running primary section.

8. It has been submitted that a Public Interest Litigation, namely Writ Petition No. 2435 (M/B) of 2001 was disposed of finally by this Court referring to earlier judgments of Coordinate Benches and directed that no commercial or industrial activities shall be carried out in any area earmarked as residential in any city in U.P.

9. It has been submitted that taking shelter of the judgment dated 20.1.2004 passed by a Coordinate Bench in Writ Petition No. 2435 (M/B) of 2001, the opposite party no. 7 filed one Writ Petition No. 3281 (M/B) of 2005 and on 20.5.2005, this Court was pleased to pass an interim order directing the LDA to take action on the application / complaint pending under Section 27(1) against the petitioners in view of the order passed by the High Court in Writ Petition No. 2435 (M/B) of 2001.

10. It is the case of the petitioners that two Government Orders were issued in pursuance of the directions issued by the Division Bench in the Writ Petition No. 2435 (M/B) of 2001 which do not mention that educational institutions also should also be closed down if they are running in a residential area.

11. It has been submitted that the petitioners were not given any opportunity and an ex-parte order was issued on 30.1.2006 for demolition of the building in question and the petitioners being aggrieved filed a recall application before the Prescribed Authority which recall application has also been rejected on 2.5.2006 on the ground that there was admission on the part of the petitioners that they were using the building for running a school.

12. The petitioners preferred an Appeal to the Divisional Commissioner / Chairman of LDA and when the Appeal was pending and no interim order was granted, the petitioners approached this Court on 18.5.2006 and this Court disposed of the writ petition on 25.5.2006 directing the competent Authority to decide the petitioners' Appeal preferably within a period of two weeks and in the meantime no demolition was to be carried out.

13. It has been submitted that the Appeal itself was rejected summarily thereafter on 31.5.2006 and the Revision filed by the petitioners thereafter was also rejected by the order dated 14.9.2006.

14. It has been pleaded in the writ petition that in similar circumstances, the City Montessori School which was running in a residential area had been granted time for searching alternative accommodation by the Divisional Commissioner / Chairman, LDA in an Appeal filed by them. The petitioner has alleged discrimination and malice in law on the action of the authorities in asking the petitioners to stop running of the School and to demolish the illegal construction thereon.

15. In the counter affidavit filed by the opposite party nos. 2 to 6 i.e. LDA, the allegation of malice and discrimination had been strongly denied and Reference has been made to Paragraph 7.5 of the Master Plan 2021 for Lucknow City effective from 31.3.2005. Not only opposite party no. 7 but one other resident of the area Shri Gurpreet Singh had also submitted a complaint in 2005.

16. It has been submitted that the petitioners are admittedly running a school in a residential area contrary to the land user provided in the Master Plan, Reference has been made to the complaint and writ petition filed by opposite party no. 7 and the orders passed therein on 20.5.2005 directing the LDA to take action in terms of the law settled by this Court in Writ Petition No. 2435 (M/B) of 2001.

17. It has been submitted that under Section 8 of the U.P. Urban Planning & Development Act, the Development Authorities prepared a Master Plan and the same is submitted thereafter to the State Government for approval.

18. The procedure prescribed for preparing and notifying the Master Plan under the Act has been followed by the LDA and the First Master Plan for the City of Lucknow was prepared in the year 1970 and the last amendment to such Master Plan was applicable upto year 2001. A new Master Plan was made thereafter which was approved and became effective on 31.3.2005 and is applicable upto year 2021.

19. It has been submitted that Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow city is in a residential area marked as such in the Master Plan.

20. Educational activities like schools can be permitted in residential area by Development Authority upon fulfillment of certain conditions, one of the conditions is to have a 30 meters wide road on which the school be situated. In the case of the petitioners, the school is situated on a residential plot having only 24 meters wide road causing lot of traffic congestion and in convenience to neighbours.

21. The map sanctioned for Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow before raising the construction did not mention that the building was being planned as a school. The petitioners in an unauthorised manner and without any permission had made construction of about 2750 sq. ft. on the ground floor, and 2750 sq. ft. on the first floor, and raised a tin shed ad-measuring 2700 sq. ft. on the second floor whereas in the sanctioned map of the building only 1429.15 sq. ft. construction on the ground floor of the plot in question was permitted.

22. It has also been submitted that the plot in question was initially allotted to one Rattan Prakash for residential purpose and the sale deed executed by the LDA specifically mentioned the land use of it as residential and not commercial. The building plan was got sanctioned by Sri Rattan Prakash from the LDA for residential purpose for construction of about 1429.15 sq. ft. on the ground floor. The petitioners have purchased the plot in question from Rattan Prakash and thereafter have raised illegal constructions thereon and are running a school in a residential area contrary to land use mentioned in the Master Plan and without any compounding or without any permission.

23. Reference has been made to the order passed by this Court on 20.1.2004 in Writ Petition No. 2435 (M/B) of 2001 and the direction being followed by issuance of two Government Orders on 5.9.2003 and 11.11.2003 by the State Government.

24. It has been submitted in the counter affidavit filed by the LDA that the LDA has a separate scheme for allotment of plots for running schools in its residential schemes for which applications are invited and allotments made at concessional rates. Infact the petitioners' school had also been allotted one plot of land at concessional rates and the petitioners are already running a school in Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow.

25. It has also been submitted in the counter affidavit of the LDA that under Section 26 of the Act of 1973 land use cannot be changed by any person contrary to the land use provided in the Master Plan. The case of City Montessori School raised by the petitioners has been distinguished and it has been submitted that the Appellate Authority has not held that City Montessori can be run in a residential area. It has only directed the LDA to grant time to City Montessori School for making alternative arrangement and that the petitioners cannot claim any parity with the order passed in Appeal relating to City Montessori School.

26. The opposite party no. 7 - Smt. Poonam Chaudhari - the complainant had also filed a counter affidavit wherein various Sections of the U.P. (Regulation of Building Operations) Act, 1958 and U.P. Urban Planning and Development Act 1973 have been quoted to show that land earmarked for the residential purpose cannot be used for any other purpose and under Section 27 of the Act of 1973, the LDA can direct demolition of illegal construction and under Section 28(a), there is a power to seal unauthorised development after giving opportunity of hearing to the concerned party.

27. It has been submitted that there is a statutory right to object to illegal and unauthorised user and any amendment in the Master Plan can only be done after inviting objections from all concerned. In the case of the petitioners, the sale deed executed by the LDA clearly provides in Clause-4 that the allottee has no right to use the plot in question for any purposes the than residential and more over the allottee has no right to create a nuisance to the neighbours. A copy of one sale deed executed by the LDA in favour of a similarly situated allottee has been filed as Annexure to the counter affidavit.

28. In paragraph 10 of the said counter affidavit, Reference has been made to similar writ petitions being entertained and orders being passed by the Division Bench of this Court prohibiting all kinds of commercial activities / change of land user without following the prescribed procedure, viz R.K. Mittal Vs. State of U.P., Writ Petition No. 36709 of 2001 and Smt. Mithilesh Jain Vs. State of U.P., Writ Petition No. 34957 of 2003 and also the writ petition filed by Nishatganj Residents Welfare Society Vs. Lucknow Nagar Nigam & others, Writ Petition No. 2435 (M/B) of 2001.

29. Reference has been made to Government Orders issued thereafter on 5.9.2003 and 11.11.2003 and public notices issued by the LDA and the Housing Board on 28.11.2003 and 2.12.2003 in several newspapers clearly mentioning that even educational institutions and offices cannot be permitted to operate in areas earmarked as residential areas.

30. Reference has been made to the observations of the Hon'ble Supreme Court in MC. Mehta Vs. Union of India AIR 2006 SC 1325 where it has been held that the residential area cannot be used for any other purposes in contravention of the Master Plan.

31. It has further been submitted that a Branch of the School in question is also situated at Purushottam Nagar, near Sant Asha Ram Bapu Nagar, which is approximately 1800 meters from the present premises and also of a Branch of the school being run in Sector-J, LDA Colony, Kanpur Road Scheme on allotment being done for the said purpose in the year 2001 to the petitioners. It has been submitted that still the petitioners insist on running the school on Plot No. B-1/35 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow with 1000 students.

32. In the supplementary counter affidavit filed by opposite party no. 7, Reference has been made to the order dated 20.1.2004 passed in Writ Petition No. 2435 (M/B) of 2001 not being modified or set aside by any competent Court till date. It is thus submitted that the same is still binding for the Authorities.

33. The Division Bench observed that in the city of Lucknow, residential areas, commercial areas and industrial areas are clearly marked in the Master Plan, but several violations thereof are being compounded by the LDA and the U.P. Housing Board although no such compounding can be done as that would be wholly illegal and destructive of the Master Plan. The Division Bench observed that against the relevant Rules and Master Plan, the Authorities often convert the use of some area earmarked as residential into a commercial area. When the residential buildings are used for commercial activities, the vehicular traffic increases and these buildings cause unnecessary and illegal parking on the roadside. Sometime, the Nagar Nigam granted Thekas for parking such vehicles which again is illegal and highly improper. A direction was issued that action should be taken against the owners of the building and they should be compelled to make arrangements of the parking of these vehicles within their own premises.

34. Learned counsel for the petitioners during the course of arguments read out a substantial portion of the order passed by this Court in Writ Petition No.2435 (MB) of 2001, which has been filed as Annexure No.3 to the counter affidavit filed by the LDA, to argue that this Court did not make any observation regarding stopping of running of schools in residential areas. However, other commercial activities have been directed to be stopped. Moreover, no compounding has been permitted.

35. Learned counsel for the petitioners has stated that even in other judgments rendered by this Court, running of schools has not been held to be a commercial activity, that should be stopped by the petitioners and similarly situated persons. It has been submitted that this argument was taken in the objection filed before the Prescribed Authority and also before the Appellate Authority and the Revisional authority that running of school is not a commercial activity and, therefore, the same is permissible in residential area, but it has not been looked into at all.

36. Learned counsel for the petitioners has also placed reliance upon Para-55 of the judgment rendered by the Supreme Court in T.M.A. Pai Foundation & others vs. State of Karnataka & others, 2002 (8) SCC 481. He has also referred to the Government Orders dated 28.11.2003 and 2.12.2003 and a reference has been made to internal Page-2 of the impugned order dated 30.1.2006, saying that the Government Orders have been cited out of context as they do not relate to running of school.

37. It has also been submitted, although not substantiated, that under the Income Tax Act, running of a school is not treated to be a commercial activity. It has further been submitted that the petitioners have filed a supplementary affidavit on 12.3.2007, wherein they brought on record the permission given by the Government for changing the user of a plot situated at Vikramaditya Marg, Lucknow from residential to institutional purpose/commercial purpose/running of office of Samajwadi Party.

38. A paper cutting containing a news paper item published in Dainik Jagran on 22.12.2016 has also been produced during the course of hearing, wherein a reporting has been done on a Board meeting of LDA, which resolved that schools, nursing homes, hotels, guest houses, gyms, running in residential areas may deposit 12.5% of the Circle Rate and then get their land user changed for commercial purposes. Learned counsel for the petitioners submits that the petitioners have already filed an application on 7.3.2007 for change of land user and for compounding, which has not been considered till date.

39. Sri B.K. Singh, learned counsel appearing for respondent no.7, who is the complainant before the LDA, has referred to several paragraphs of the counter affidavit to show that the building in question in which, school is being run by the petitioners, has been constructed without following the building bye-laws of the LDA. There is no set-back provided in the building. The plan was sanctioned by the LDA for residential purposes. The Chief Fire Officer's 'no objection certificate' which is required for running a school has also not been taken.

40. With regard to the petitioners' contention that compounding application has been moved by them but no action been taken thereupon, learned counsel for respondent no.7 has referred to Section 9 and Section 13 of the Act of 1973, wherein it has been mentioned that after the Master Plan is prepared, Zonal development areas are marked out and the institutional areas are provided therein where commercial activity like running of a bank, nursing homes, gym, guest house and school is permitted. He has referred to a provision for change of land user for institutional or commercial purpose only after issuance of notice, inviting objections from general public by the LDA in this regard. He has also referred to the documents filed along with the writ petition and rejoinder affidavit of the petitioners to show that LDA has issued various advertisements for allotting institutional areas for running of schools in various colonies developed by it in the city of Lucknow and land is being allotted for running of schools at 50% concessional rates. In fact, the petitioners have also been given two plots in the same Kanpur Road Yojana by LDA, on which plots of land, petitioner is running two branches of the schools, but there is an insistence on the part of the petitioners to run St. Xaviers Day School at Plot No.B-1/36, Sector-D, LDA Colony, Kanpur Road, Lucknow also, which is only a residential area even in the Sector Development Plan and the zonal plan.

41. Learned counsel for respondent no.7 has pointed out that no public interest is involved in running a school in a residential area when institutional areas have been clearly demarcated for the said purpose and land is being allotted at concessional rates by the LDA for running such schools in such areas. Sri B.K. Singh has referred to a judgment rendered by the Supreme Court in the case of M.C. Mehta vs. Union of India and others, AIR 2006 SC 1325, which has been filed as Annexure-9 to the counter affidavit filed by respondent no.7 and to the judgment rendered recently by the Supreme Court in the case of R.K. Mittal and others vs. State of U.P. and others (2012) 2 SCC 232 and Paragraphs 46 and 74 thereof. He has also brought before this Court two judgments of Division Bench of this Court in Writ Petition No.6285 (MB) of 2004, decided on 29.8.2014 and Writ Petition No.2473 (MB) of 2004, decided on 16.4.2013, where this Court has observed that running of schools/educational institutions in residential areas is impermissible. In Writ Petition No.6285 (MB) of 2004, the petitioner had come against one Queens Convent Inter College being run in Sector-J, Aliganj. This Court had directed the school to windup the educational institution after the end of academic session and had directed that no fresh admissions be taken for the forthcoming academic session.

42. Sri Vivek Shukla, appearing for the State-respondents has pointed out that there is specific mention in the Government Orders dated 5.9.2003 and 11.11.2003 with regard to any kind of activity other than residential being carried out in residential areas being specifically prohibited by the aforesaid two Government Orders.

43. Having heard the rival submissions of the learned counsel for the parties, this Court finds from a perusal of the orders impugned that opportunity of hearing was granted and it was also availed by the petitioners before the Prescribed Authority passed the orders dated 31.1.2006 and 20.5.2006.

44. It has been admitted by the petitioners that the plot in question is a residential plot. The authorities have found also that the map was sanctioned for the plot in question for residential building ad-measuring 1429 sq. ft. only. The petitioners have raised illegal construction much beyond the sanctioned plan on the plot in question and are running a Junior High School and a High School thereon i.e. they are running a school from class XI to Class XII as recognised under the Intermediate Education Act.

45. This Court finds the plea taken in the writ petition that the petitioners are infact sharing the liability of the State Government in giving primary education from class I to Class VIII for children upto 14 years as illusory and misleading. It is not the petitioners case that classes I to VIII have been recognised by the BSA.

46. This Court also finds that the petitioners have resorted to concealment of material facts that they are already running two branches of the same school in area falling under the same Scheme.

47. With regard to plea of the petitioners that they are not running any commercial activity as an educational institution cannot be deemed to be a commercial activity, this Court finds the argument as misconceived as in the majority judgment authored by Hon'ble the Chief Justice as he then was in T.M.A. Pai Foundation Vs. State of Karnataka 2002 (8) SCC 481, it has been observed in paragraph 18 that the right to establish educational institutions is covered by Article 19(1)(g), Article 26 and Article 30 of the Constitution.

48. In paragraph 20, it has been observed that Article 19(1)(g) employs four expressions, viz. "profession", "occupation", "trade and business". Their fields may overlap, but each of them does have a content of its own. Education has so far not been regarded as a trade or business where profit is the motive and is charitable in nature. Nevertheless, the imparting of education is "a profession" or "an occupation". Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6) The word "occupation" is inter alia defined under the Corpus Juris Secundum is an activity in which one engages" or "a craft, trade, profession or other means of earning a living"

49. In paragraph 24 of the majority judgment, it has been observed that the right to establish educational institutions being "an occupation" is a fundamental right under Article 19(1)(g) and it may be controlled in a variety of ways." "--------- The right to carry on a business may be subject to licensing laws and does not entail the right to carry on a business on a particular place."

50. The majority judgment as clearly held that the activity of setting up educational institution for imparting education can be termed as "a profession" or "occupation" and is subject to reasonable restriction as all fundamental rights are subject to reasonable restriction Article 19(6).

51. The judgment rendered by the Supreme Court in T.M.A. Pai Foundation was later on relied upon in Pramati Educational & Cultural Trust Vs. Union of India 2014 SCC 1. The Constitution Bench again observed that the right to establish educational institution cannot be an unbridled right and it is subject to reasonable restrictions imposed by the State. It upheld the Constitutional validity of the Article 15(5) by which setting aside seats for reserved category even in private unaided institutions was enabled.

52. Similarly in Modern Dental College & Research Centre Vs. State of M.P. 2016 (7) SCC 353, it was observed that Article 15(5) of the Constitution does not abrogate any of the right under Article 14, Article 19(1)(g) and 21 of the Constitution.

"38 Sodan Singh case, this Court also rejected the argument that the said activity could be classified as a 'profession'. However, the right of professional institutions to establish and manage educational institutions was finally regarded as an 'occupation' befitting the recognition of this right as a fundamental right under Article 19(1)(g) in T.M.A. Pai Foundation, in the following words:

39. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The above-quoted observations in Sodan Singh case, (1989) 4 SCC 155, correctly interpret the expression "occupation" in 19(1)(g)." Having recognised it as an 'occupation' and giving the status of a fundamental right, the Court delineated four specific rights which encompass right to occupation, namely, (i) a right to admit students; (ii) a right to set up a reasonable fee structure; (iii) a right to appoint staff (teaching and non-teaching); and (iv) a right to take action if there is dereliction of duty on the part of any employees. In view of the aforesaid recognition of the right to admit the students and a right to set up a reasonable fee structure treating as part of occupation which is recognised as fundamental right under 19(1)(g) of the Constitution, the appellants have easily crossed the initial hurdle. Here comes the second facet of this issue, viz. - what is the scope of this right of occupation?

(emphasis supplied)

53. In paragraph 40, it was observed by the Supreme Court in Modern Dental College and Research Centre that Education is treated as a noble 'occupation' to be carried out on a 'no profit no loss' basis. Thus, those who establish and are managing the educational institutions are not expected to indulge in profiteering or to commercialise this noble activity. Keeping this object in mind, the Court in T.M.A. Pai Foundation (supra) did not give complete freedom to the educational institutions in respect of right to admit students and also with regard to fixation of fee.

54. It is apparent from the judgments in T.M.A. Pai Foundation (supra), Pramati Educational Trust (supra) and Modern Dental College & Research Centre (supra) that the Supreme Court was considering the right of the management to establish educational institutions and to give admission to students and to charge fees as they thought fit and held that such right was subject to reasonable restriction as fixed by the State.

55. In the case of the petitioner it has a right to establish a school under Article 19(1)(g), but such right is subject to reasonable restriction. Such reasonable restriction can be as are envisaged under Urban Planning and Development Act, 1973 with regard to the place where such educational institution is to be established. The petitioner having established his institution in 1989-90 was able to generate sufficient profit to open two branches of the said school in Kanpur Road Scheme itself of the LDA. Most certainly the petitioners school can be regulated as any other commercial activity by the LDA under the Act of 1973

56. In R.K. Mittal Vs. State of U.P. (2012) 2 SCC 232, the Supreme Court was considering an appeal from the judgment of this Court directing immediate and strong action by the Development Authority against those who had stated using residential plots wholly or partially, for other non residential uses. It was observed by the Supreme Court that Development Authority also cannot permit change in user as a policy matter:

"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 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."

57. In para 59 of the judgment in R.K. Mittal (supra), it was observed thus:-

"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 law in force."

58. This Court does not therefore find any good ground to show interference in the orders impugned. There is no challenge to the findings of fact recorded in the orders impugned relating illegal construction being raised by the petitioners over the plot in question in a residential area.

59. The writ petition being devoid of merits is dismissed. This Court having not interfered with the orders impugned, it is expected that the LDA will ensure their compliance.

60. The petitioners are directed to accommodate the students studying in the building raised on Plot No. B-1/36 situated at Sector-D, LDA Colony, Kanpur Road, Lucknow in the different branches of the same school being run by them in the area in question w.e.f. Ist of July 2019.

Order Date :- 28.5.2019

Arif