M/S Vijay Infra Tech India Private ... vs State Of U.P. And 3 Others
2023 Latest Caselaw 27954 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:195430-DB
 
Judgment Reserved on : 31.07.2023
 
Judgment Delivered on : 11.10.2023
 
Chief Justice's Court
 

 
Case :- WRIT - C No. - 31191 of 2022
 
Petitioner :- M/S Vijay Infra Tech India Private Ltd.
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Arvind Srivastava,Sharique Ahmed
 
Counsel for Respondent :- C.S.C.,Anand Prakash Paul
 

 
Hon'ble Pritinker Diwaker,Chief Justice
 
Hon'ble Ashutosh Srivastava,J.

1. The instant writ petition has been filed assailing the order dated 29.09.2022 passed by Respondent No. 3, Vice Chairman Kanpur Deployment Authority, rejecting the representation of the petitioner filed in response to the order dated 09.09.2022 passed by this Court in Writ Petition No. 27012 of 2022. Further prayer has been made to command the Development Authority to send the report as per the letter dated 29.09.2022 to the State Government for the decision on the petitioner's application dated 03.08.2022 under Section 54 of the Urban Planning and Development Act, 1973 (in short 'the Act').

2. The brief facts of the case is that petitioner company claims to be Bhumidhar and owner of Arazi Nos. 496, 497, 499, 506, 509, 510, 513, 515, 516, 517, 523, 524, 525, 526, 527, 528, 529, 579, 580, 583, 585, 586, 652 and 653 ad-measuring area about 10 acres situated in village Baikunthpur, Bithoor, Kanpur Nagar.

3. The State Government issued a Government Order dated 16.11.2006 approving the Master Plan as provided under Section 8 of the Urban Planning and Development Act, 1973 in respect of the area for Kanpur Nagar making the same effective till 2021.

4. Apart from other proposal in the Master Plan 2021, the Kanpur Development Authority proposed an area of 77.9 hectares to be reserved for District Park. The land reserved included the land belonging to the petitioner company especially part of Plot No. 585 situated at Baikunthpur Bithoor, Kanpur Nagar.

5. The District Park proposed in the Master Plan 2021 is in the periphery of four villages namely Baikunthpur, Gambhirpur, Bagdawat and Sambalpur in Master Plan 2021 which is made effective from 16.11.2006 and this was having four roads from the proposed District Park connecting the villages Sandila, Baikunthpur and Gambhirpur, which cannot be abandoned and apart from it, State Highway is also passing through the area reserved for District Park because of which the proposal of District Park has become inexecutable and unviable.

6. The State Government issued Government Order dated 04.09.2020 declaring 5000 hectare land of village in Bithoor as no development area and permitting no constructions to be done within 15 km in terms of the directions of the National Green Tribunal as such in the entire area of about 15 kms no construction/development can take place in the area which has been declared as 'No Construction Zone' which is adjacent to the proposed District Park which also makes the provision for District Park unsuitable and unviable.

7. The Respondent-Development Authority, vide notification dated 13.04.2022, published in the news daily invited suggestions and objections from the general public and the tenure holders for the proposed Master Plan 2031. Along with the notification, the Development Authority also published the proposal for land use for Master Plan 2031. The Draft Master Plan 2031 has reduced the size of the District Park area from 77.9 hectares to 25 hectares.

8. The petitioner submitted objections dated 03.08.2022 alleging inter alia that almost 16 years have passed and no development activities has taken place and no useful purpose will be served to carry out the proposal of District Park and prayed that the area be left out and permission be granted for change of land use.

9. The Respondent Development Authority has also sanctioned the map for Five Star Hotel in the name of M/s Kudrat Hotels Private Limited which has been constructed and is existing on the area marked for District Park situated at village Baikunthpur, Bithoor, Kanpur Nagar.

10. As the objections of the petitioner were not being considered, the petitioner was constrained to approach this Court by means of Writ-C No. 27012 of 2022. This Court vide dated 09.09.2022 disposed of the writ petition with the direction to Respondent Development Authority to consider the objection filed by the petitioner in relation to reserving its land for a District Park before approving Master Plan 2031.

11. Pursuant to the direction issued by this Court, the petitioner filed detailed representation dated 15.09.2022, which has been rejected vide order 29.09.2022 passed by Respondent No.3, Vice Chairman Kanpur Development Authority. Hence, the present writ petition.

12. Supplementary affidavit has been filed annexing the copy of the sanction letter for M/s Kudrat Hotel Private Limited for building a Five Star Hotel over the area which is a earmarked for District Park and the same is partly existing in the same Arazi No. 585, which is partly owned by the petitioner herein.

13. On the strength of the above admitted facts, Sri Shashi Nandan, learned Senior Counsel for the petitioner submitted that for the purpose of District Park, land of three villages namely Sandila, Baikunthpur and Bagdodi had been reserved and as per the requirement/norms of the Development Authority, 25 hectares of land is required for District Park and in the village Sandila 29.7 hectare land is available. No objections with respect to the said land has been filed and the land of village Baikunthpur being less than 25 hectare, the same may be left out in the Master Plan 2031 and the District Park can be reserved in village Sandila.

14. The Respondents have filed a counter affidavit refuting the averments of the writ petition. In para 11 it has been stated that there is provision for including green belt, park or any other open area in the Master Plan in proportion to the area to be urbanized according to which area has been shown in the plan. It has been further asserted in para 13 that the development process is carried out by the authority according to funds availability and also in pursuance of the priority of the majority of the populated area. The District Park is also a priority of the authority but it will be developed when there will be necessity of doing it and so for as the highway is concerned, it is for the purpose of public utility. In para 18 of the counter affidavit, it has been stated that the hotel in question is outside the area reserved for the District Park and the map of the concerned hotel has been duly sanctioned by the Authority.

15. In response thereof, rejoinder affidavit has been submitted in which it has been averred that the map sanctioned for the alleged hotel lies in the area reserved for District Park.

16. It has been contended by the learned Senior Counsel that a bare perusal of the sanctioned map clearly shows that the project of hotel vis-a-vis is construction exist on Arazi Nos. 595 and 637, however the Arazi No. 585 is also being partly owned and used by the M/s Kudrat Hotels Private Limited for hotel purpose.

17. We have heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Sharique Ahmad, learned counsel for the petitioner and Sri A. P. Paul, learned counsel representing the respondent Development Authority and perused the records.

18. Having perused the record, we find that the area of village- Baikunthpur, Bithoor, which is reserved for District Park is only 20 hectares and as such, is less than 25 hectares i.e. the area reserved for District Park and a CNG Pump is also situated in the said area and further the area of District Park is divided by State Highway and other connecting roads, and which itself goes to show that the area of proposed District Park is not contiguous in nature, is in fragments, coupled with the fact that the Respondent Development Authority has given permission for the commercial activities in the said area by sanctioning map of M/s Kudrat Hotel Pvt. Ltd. covering Plot No. 585 (Annexure No.2 of the Supplementary Affidavit).

19. Thus, this Court finds that the Respondents Development Authority has changed the land use in respect of M/s Kudrat Pvt. Ltd. and in such view of the matter, the objections of the petitioner could not have been rejected on the ground that the area is reserved for District Park.

20. Before dealing with the rival submissions, it would be apposite to refer to some of the provisions of the Urban Planning and Development Act, 1973 relevant for resolving the issue involved.

"Section 7. Objects of the Authority.- The objects of the Authority shall be promote and secure the development of the development area according to plan and for that purpose the Authority shall have the Power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with the supply of water and electricity to dispose of sewage and to provide and maintain other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto: Provided that save as provided In this Act nothing contained in this Act shall be construed as authorizing the disregard by the Authority of any law for the time being in force."

21. Section 8 of the Act, 1973 contemplates the preparation of the Master Plan for the development area and Section 9 of the Act, 1973 provides for the zonal development plans. The sections read as follow:-

"8. Civil survey of, and master plan for the development area:- (1) The Authority shall, as soon as may be, prepare a master plan for the development area. (2) The master plan shall-define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and serve as a basic pattern of framework within which the Zonal development plans of the various zones may be prepared. (3) The master plan may provide for any other matter which may be necessary for the proper development of the development area.

9. Zonal Development plans.- (1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development" plan for each of the zones into which the development area may be divided.

(2) A zonal development plan may- (a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses;

(b) specify the standards of population density and building density;

(c) show every area in the zone which may, in the opinion of the Authority, be required or declared for development or re-development; and

(d) In particular, contain, provisions regarding all or any of the following matters, namely-

(i) the division of any site into plots for the erection of buildings;

(ii) the allotment or reservation of land for roads, open spaces, gardens, recreation-grounds, schools, markets and other public purposes:

(iii) the development of any area into a township or colony and the restrictions and conditions subject to which such development may be undertaken or carried out,

(iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings:

(v) the alignment of buildings of any site;

(vi) the architectural features of the elevation or frontage of any building to be erected on any site,

(vii) the number of residential buildings which may be erected on plot or site;

(viii) the amenities to be provided in relation to any site or buildings on such site whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided:

(ix) the prohibitions or restrictions regarding erection of shops. work-shops, warehouses of factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality,

(x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained:

(xi) the restrictions regarding the use of any site for purposes other than erection of buildings;

(xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly, in such zone or area."

22. Section 10 of the Act, 1973 contemplates submission of the plans to the State Government and its power to issue directions in the matter of the modification etc. of such plans.

23. Section 11 of the Act, 1973 provides for the approval of the plans by the State Government.

24. Section 38-A of the Act, 1973 confers a power upon the Authority to levy the land use conversion charges and the city development charges which reads as follows:-

"38-A. Power of Authority to levy land use conversion charge and city development charge:- (1) Where in any development area, the land use of a particular land is changed as a result of amendment of Master Plan or Zonal Development Plan under Section 13, the Authority shall be entitled to levy land use conversion charge on the owner of such land and in such manner and at such rates as may be prescribed:

Provided that the land use conversion charge shall be recovered from the owner of land by the Authority prior to final notification under sub-section (4) of Section 3 of this Act: Provided further that where the land use of a particular land is changed as a result of coming into operation of Master Plan or Zonal Development Plan, no land use conversion charge shall be levied upon the owner of such land.

(2) Where in any development area a license has been granted to private developer for assembly and development of land, the Authority shall be entitled to levy city development charge on the private developer of such land and in such manner and at such rates as may be prescribed."

25. Section 39-A of the Act, 1973 provides for toll for amenities and Section 39-C of the Act, 1973 provides for levy of licence fee on the licence to be granted to the private developers.

26. Section 41 of the Act, 1973 confers a power upon the State Government to issue directions to the Authority and the Chairman and Vice-Chairman for efficient administration of the Act as well as to exercise of its powers and discharge of its functions by the Authority.

27. Section 55 of Act, 1973 confers a power upon the State Government to make rules for carrying out the purposes of the Act by notification in the official gazette and Section 55 (3) mandates that the rules so framed shall be laid before each House of the State Legislature within the period specified therein.

Section 55 of the Act, 1973 reads as follows:-

"55. Power to make rules.- (1) The State Government may, by notification in the Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the force going power, such rules may provide for all or any of the following matters, namely-

(a) the levy of fee on a memorandum of appeal under Sub-section (5) of Section 15 or under Subsection (2) of Section 27)

(b) the procedure to be followed by the [Chairman] in the determination of betterment charge, and the powers that it shall have for that purpose;

(c ) any other matter which has to be, or may be, prescribed by rules.

(3) All rules made under this Act shall, as soon as may be after they are made, be laid before each House of the State Legislature, while it is in session, for a total period of not less than thirty days, extending in its one session, or more than one successive session, and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette, subject to such modifications or annulment as the two Houses of the Legislature may, during the said period, agree to make, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder."

28. Section 56 of the Act, 1973 confers the power to make regulations with the approval of the State Government upon the Authority and Section 57 of the Act, 1973 provides for framing of the bye-laws by the Authority for the purpose of carrying out the provisions of the Act with the approval of the State Government.

29. From a simple reading of the aforesaid statutory provisions, it is apparently clear that the basic purpose for constituting a Development Authority and for declaring any area to be a development area under the Act, 1973, is to ensure that the development in the area takes place according to the plan, and not otherwise. The purpose is to have a planned development. The object of the Development Authority, as provided for under Section 7, is to hold and manage the land to carry on the engineering and other managing activities and further to execute works in connection with the supply of water and electricity, to dispose of sewage and to provide other services and amenities and to do everything which is necessary or expedient for the purposes of such development and for purposes incidental thereto.

30. It is, therefore, clear that the purpose of the Development Authority is not only to sanction maps in the matter of raising of constructions, but also to ensure that necessary works are carried out in the development area in connection with supply of water, electricity, disposal of sewage, and maintenance of other services and amenities which would include amenities like provisions for school, medical help, open areas parks which are all essential for a pollution free environment for the residents of the development area and for basic amenities of life being made available to them.

31. In the aforesaid background, Section 8 contemplates preparation of a Master Plan for the development area. Sub-section (2) specifically provides that each development area has to be divided into zones for the purposes of development and to the manner in which, the land in each zone is proposed to be used and the stages by which such development shall be carried out. It is to serve as the basic pattern of framework within which the zonal development plan of various zones may be prepared.

32. From Section 8 itself, it is clear that the Master Plan is to be framed as a platform for the purposes of carrying out the development work in the various zones and for preparation of the zonal development plans. The stages in which such development is to be carried out is also to be necessarily indicated in the Master Plan in order to ensure that the development as provided for is done in accordance with the basic pattern as disclosed in the Master Plan.

33. Section 9 contemplates preparation of the zonal development plans. These zonal development plans have to be prepared simultaneously with the preparation of the Master Plan or as soon as may be possible, subsequent to the preparation of the Master Plan. These zonal plans have to provide for a site plan and use-plan for the development of the zone. It has to depict approximate locations and extents of land use proposed in the zone for such things as public buildings, public works and utilities, roads, sewage, drains, business areas, markets, schools, hospitals, public and private open spaces and other categories of public and private uses.

34. The standards of population and building density are also to be depicted in the zonal plans. Clause (d) provides for the matters which must necessarily be provided for in a zonal plan and these have been stated in sub clauses (i) to (xii) which have already been quoted above.

35. Thus as per the prevailing approach and methodology, there are three levels of urban planning :-

(1) Master Plan,

(2) Zonal Development Plan,

(3) Sub-division/Layout Plan.

36. A brief description of these 3 stages is as follows :-

(1) Master Plan :- It is long-term (15-20 years) land use plan for the planned development of the city prepared under section 8, 10 and 11 of the Act. It provides comprehensive proposals for socio-economic development and spatial development indicating the manner in which the use of land and development therein shall be carried out by the Authority and other related agencies. Thus, Master Plan is a design for the physical, social and economic development of the city, and also to improve the quality of life as well.

(2) Zonal Development Plan :- It is a detailed plan for a zone prepared within the framework of master plan under Sections 9, 10 and 11 of the Act containing proposals for zone level land uses, roads and streets, parks and open spaces, community facilities, services and public utilities, etc.

(3) Sub Division plan or Layout Plan :- It is a micro land use plan showing sub-division of any land or portion thereof into more than one parcel for the purposes of sale or otherwise. Sub-Division Plan may be for a new area or for such land which is reclaimed after clearance of existing development especially in old build up or blighted areas of the city."

37. We may record that the State Government and the Development Authorities through-out the State of Uttar Pradesh have to follow Sections 8 & 9 of the 1973 Act so as to ensure planned development. The indifferent attitude of the State Government and Development Authorities towards planned development as contemplated under the Act with the preparation of the Master Plan and Zonal Plans is reflected from one simple fact which is admitted on record namely that till date i.e. even after 50 years of the passing of the Act, 1973, only three zonal plans have been prepared and approved by the State Government, in the entire State of Uttar Pradesh

38. It was conceived by the State Legislature under Section 9 of the Act that the zonal plan shall be prepared simultaneously with the Master Plan or as soon as may be thereafter. But the words 'simultaneously' and 'as soon as may be thereafter' occurring in Section 9 of the Act, 1973, have been stretched by the Development Authorities and the State Government to mean as "at whatever point of time State/Development Authority may so desire". As till date the Development Authorities in the State of Uttar Pradesh and the State Government have not been able to understand the meaning of the simple words 'simultaneously' and 'as soon as may be', therefore, they have not proceeded to prepare zonal plans for the entire development area within the territorial jurisdiction of the Development Authority for last 50 years. In our opinion, unless the zonal plans are prepared and approved, the very purpose of establishment of the development authorities is frustrated. The zonal plans, as noticed above, are required to provide for various instructions in respect of any particular parcel of land being reserved for a particular purpose and further, the notification of the areas which are to be left for public utilities like parks, private open spaces, hospital, school etc.

39. A similar issue has already been dealt with by a Co-ordinate Bench of this Court in Anuj Singhal and another v State of U.P. and Anr., reported in 2020 141 AllLR 22 decided on 20.04.2020, whereby the Court dealt with a Question of law- Where land owned by a private person is kept reserved as an open space or unbuilt or to be developed in a particular manner or subject to compulsory acquisition then it is obligatory upon the State to acquire the said land within 10 years from the date Plan/Master Pan/Zonal Plan came into operation under Section 12 of U.P Urban Planning and Development Act 1973. The said writ was allowed by the Hon'ble court affirming the said provision.

40. In nutshell, brief facts of the aforesaid matter were that, a Master Plan of Meerut Mahayojna, 2001 was notified w.e.f. 14.08.1996 which included disputed Plot No. 229. Aforesaid plan was accepted by State Government vide Government Order (hereinafter referred to as "G.O.") dated 02.08.1996. It was published under Section 12 of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "U.P. Act, 1973") by Notification dated 14.08.1996. Master Plan was enforced from 14.08.1996. Land in dispute was kept reserved for use as Bus Stand/ Bus Terminal. The petitioners had purchased a plot in that matter vide a registered sale deed dated 22.08.2003. The period of 10 years, as contemplated in Section 54 of U.P. Act, 1973 was going to expire on 14.08.2006. Petitioners sent a notice dated 18.01.2005 under Sections 54(1) and 54(2) of U.P. Act, 1973. Obviously this notice was given before expiry of 10 years. By letter dated 04.08.2006, State Government informed the petitioners that land in dispute, is not covered by Section 54(1) and 54(2) of U.P. Act, 1973, therefore, no relief can be granted to petitioner.

41. Another notice was again sent by the petitioner in that case to Meerut Development Authority pertaining to usage of their land as 10 years period had passed and thus they are free to use the land as they deemed fit within their Constitutional right, the same was replied to by Meerut Development Authority that Master Plan of Meerut Mahayojna, 2001 became effective from 14.08.1996 wherein disputed land was reserved for use of Bus Stand/ Bus Terminal. So long as Meerut Mahayojna, 2001 is not repudiated or modified by a new scheme, it will continue to operate and contrary thereto petitioners cannot be allowed to use it otherwise. They then submitted a map for sanction of raising construction over land in dispute by letter dated 12.03.2007 and thereafter filed a writ petition before the Hon'ble High Court.

42. In the said matter, the State Government filed a counter submitting that petitioners had submitted a representation dated 12.03.2007 under Sections 54(1) and 54(2) of U.P. Act, 1973. They applied to State Government for acquisition of Plot No. 229 area 2921 sq. meter. State Government vide letter dated 22.03.2007 referred the matter to Meerut Development Authority for taking appropriate decision in accordance with Rules. Disputed plot was earmarked in Meerut Mahyojna 2001 for the purpose of transportation. It was reserved for continuous transportation i.e. for Bus Stand and Bus Terminus. This was maintained in Meerut Mahayojana 2021 also. The land in dispute was required to be utilized for public purposes i.e. Bus Stand and Bus Terminus. Meerut Development Authority prepared proposal of Master Plan 2021 and sent the same to the State Government for approval. Vide order dated 13.10.2006 State Government approved Meerut Master Plan 2021 with some amendments. Disputed land was still reserved for public purposes as it was in Meerut Master Plan 2001 which was effective w.e.f. 14.08.1996, i.e., for Bus Stand and Bus Terminus. Meerut Development Authority has published public notice in daily news paper, "Danik Jagran: dated 23.10.2006 and "Hindustan Times" and "Times of India" dated 24.10.2006. Land use was same as it was in Master Plan 2001 i.e. for Bus Stand and Bus Terminus with 45 meters vide Master Plan Road. Provisions of Sections 10 and 12 of the Urban Planning and Development Act, 1973 had been complied with by respondents. Before finalization of Master Plan, 2021 objections and suggestions were invited but no objections were received regarding disputed land. Petitioners made objection and representations to Meerut Development Authority for change of land use after demolition of unauthorized construction.

43. It was reiterated that Plot No. 229 situated in Village Budhera, Jahidpur, Meerut has been demarcated in Meerut Master Plan 2001 as well as Meerut Master Plan 2021 for public interest for facilitating Transport and Traffic by construction of Bus Stand and Bus Terminus. Petitioners have purchased land in 2003; Master Plan 2001 was already in operation; land in dispute was reserved for public purpose; petitioners illegally started construction over land in dispute, hence Meerut Development Authority has rightly proceeded in accordance with law for demolition of unauthorized construction. It was reiterated that Master Plan 2021 forwarded to Government for its approval on 22.02.2005 was well within time i.e. before expiry of prescribed period of 10 years, which was approved on 13.10.2006 and came into force on 23.10.2006 after publication of public notice in daily news papers.

44. Dispute in the present writ petition also pertains to Section 54 of the U.P. Urban Planning and Development Act, 1973. A long time, much more than a decade has already passed, yet the Development Authority submits that they shall develop a park as and when the need arises and the authority is possessed with necessary funds to do so. The stand of the respondent Development Authority is contrary to the very ethos of the Section 54 of the Act. The legislative intent behind the said section is to protect the private parties from arbitrary action and dependency upon the State from enjoying their property for the failure of State to act within the time frame of 10 year allotted to them for development and necessary action as per Master Plan. The uncertainty, which flows from the stand of the Authority, cannot keep away the petitioner/private people from enjoying their Constitutional rights in the guise of Master Plan, whereby the Authority has been allowing several other development projects for private people to develop their commercial ventures, developing a State Highway through a park knowingly as the same is not feasible for the park purposes.

45. One of the important provisions which, in our view, is relevant for consideration of issue raised in this petition is Section 54 of Urban Planning and Development Act, 1973. The said section is reproduced as under:-

"54. Plans to stand modified in certain cases.-(1). Where any land situated in the development area is required by the Master Plan or a zonal Development Plan to be kept as an open space or unbuilt upon or is designated in any such plan as subject to compulsory acquisition, then, if at the expiration of ten years from the date of coming into operation of the Plan under Section 12 or where such land has been so required or designated by any amendment of such plan, from the date of coming into operation of such amendment, under Sub-section (4) of Section 13, the land is not compulsorily acquired the owner of land may serve on the State Government a notice requiring his interest in the land to be so acquired.

(2) If the State Government fails to acquire such land within a period of six months from the date of the notice, the Master Plan or, as the case may be, the Zonal Development Plan shall have effect after the expiration of the said six months, as if that land were not required to be kept as an open space or unbuilt upon or were not designated as subject to compulsory acquisition."

46. Section 54 of U.P. Act, 1973, in effect, is a provision which protects the interest of a private owner of land where such land has been reserved for some 'public purpose' and is to be acquired by State forcibly. In order to check inaction or arbitrariness of State Authorities by keeping such land reserved without acquisition proceedings for a long time, a balance of interest of State as well as individual and owner has been maintained and it is provided that where land owned by a private person is kept reserved as an open space or unbuilt or to be developed in a particular manner or subject to compulsory acquisition, then it is obligatory upon the State to acquire the said land within 10 years from the date Plan/Master Plan/ Zonal Plan (as the case may be) came into operation under Section 12, i.e. on the date when Plan is published after approval by State Government.

47. Section 54 of U.P. Act, 1973 provides that a land, if reserved in a Master Plan for any particular purpose, and if not given effect to within 10 years from the date of coming into operation of Master Plan under Section 10 or not acquired within 10 years from the date of coming into operation of such amendment, the owner of land may serve a notice upon State Government requiring it to acquire such land and, if State Government fails to acquire within six months from the date of such notice, Master Plan or as the case may be, Zonal Development Plan, after expiry of said six months, shall stand as if the land was not kept reserved for particular purpose or not required to be acquired.

48. If land is not so acquired within 10 years, then it will be open to the land owner to serve a notice upon State to acquire land or interest of land owner in the land and from the date of service of notice, State Government further shall have an opportunity to acquire land within six months. Still if it fails, then by operation of law, such land shall stand released, inasmuch as, it shall result, in effect, as if the said land was not required to be kept as an open space or unbuilt or for development of any public purpose and would not be available for compulsory acquisition. Meaning thereby, private land owner can proceed thereafter to use land in the manner he likes.

49. In the above conspectus, the issues which have arisen for adjudication by us, are as follows:

1. Whether development authority is entitled to keep a parcel of land, owned by a private person, reserved for any public purpose under master plan or zonal development plan in a manner that owner may not use it for lengthy period of time and state Government or development authority and may neither acquire the same under Section 54 of the U.P. Act, 1973.

2. Whether the owner can request for a release of land after following the procedure established by law under Section 54 of the U.P. Act, 1973 if a period of 10 years has lapsed since the said master plan or zonal plan came into effect but no acquisition or development on said land has taken place.

50. Pertaining to the aforementioned questions arisen for adjudication before us, there are numerous decisions of the Hon'ble Supreme Court apart from the aforementioned judgment of a Co-ordinate Bench of this Court.

51. In K. L. Gupta and Ors. vs. The Bombay Municipal Corporation and Ors. AIR 1968 SC 303, similar provision of Bombay Town Planning Act, 1954 (hereinafter referred to as "Bombay TP Act, 1954") and Bombay Municipal Corporation Act, 1888 (hereinafter referred to as "Bombay MC Act, 1888") came up for consideration before a Constitution Bench. Therein constitutional validity of Sections 9, 10, 11, 12 and 13 of Bombay TP Act, 1954 was challenged. In the process of upholding Constitutional validity of above provisions, Court observed, that, where much powers are given to authorities, exercise whereof make serious inroads into the rights of property of private individuals, Court has to see whether there is any guidance to be collected from the Act itself, its object and its provisions, in the light of surrounding circumstances which made the legislation necessary, taken in conjunction with well known facts of which the Court might take judicial notice. Period of 10 years for the purpose of attracting reservation of land lapsed was held a reasonable period. In this regard, Court observed as under:

"With regard to the complaint that the period of ten years fixed under Section 11(3) of the Act was too long, and an unreasonable restriction on the rights of a land owner to deal with his land as he pleased, it is enough to say that in view of the immensity of the task of the local authorities to find funds for the acquisition of lands for public purposes, a period of ten years was not too long."

52. While examining the scheme of statute, Court also referred to the provisions relating to lapse after 10 years and observed:-

"Sub-section (3) provides that if the designated land is not acquired by agreement within ten years from the date specified under sub-section (3) of Section 10 or if proceedings under the Land Acquisition Act are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six months from the date of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have, lapsed. This provision again is for the benefit of the owner of the land for unless the land is acquired or steps taken in that behalf within the fixed limits of time, he ceases to be bound by the designation of his land as given in the development plan. Section 12 obliges every person who desires to carry on any development work in any building or in or over any land within the limits of the said area after the date on which a declaration of intention to prepare a development plan to apply to the local authority for a commencement certificate for the purpose. 'Development' in this connection means carrying out of building or other operations in or over or under any land or the making of any material change in the use of any building or other land. It is to be noticed that the section imposes such restriction not only from the date of preparation of the development plan but as soon as there is publication of intention to prepare a development plan."

53. Section 127 of Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "Maharashtra RTP Act, 1966") which is substantially parimateria to Section 54 of U.P. Act, 1973 came up for consideration before a two Judges Bench of Supreme Court in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants'Association, AIR 1988 SC 233. The dispute related to a double storied building situate on a land ad-measuring 3645.26 square metres bearing survey no. 176 of Tardeo, Bombay. In a development plan the said land was reserved for a recreation ground. Development plan was approved by State Government on 06.01.1967 and came into effect on 07.02.1967. No action for its acquisition was taken by authorities till 01.01.1977. The private owners of land served a purchase notice dated 01.07.1977 on Commissioner, Municipal Corporation of Greater Bombay (hereinafter referred to as "MCGB") either to acquire land or release it. Notice was received by MCGB on 04.07.1977. Section 127 of Maharashtra RTP Act, 1966 with reference whereto notice was served read as under:

"127. If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development or otherwise, permissible in the case of adjacent land under the relevant plan."

54. A learned Single Judge of Bombay High Court allowed writ petition of owner holding that no action was taken by authorities within 10 years from the date on which final development plan came into force by taking recourse to Section 126(1) of Maharashtra RTP Act, 1966 and therefore, even acquisition notification issued by State Government was quashed. The view taken by learned Single Judge was upheld by Division Bench by dismissing appeal of MCGB. The Division Bench gave its reason that six months period would commence from the date of notice received by MCGB and within six months, no action was taken, therefore, reservation of land for recreation ground deemed lapsed by operation of statutory provision contained in Section 127 of Maharashtra RTP Act, 1966. It is in this context, Supreme Court observed, that reservation of private land and provision enabling acquisition is a fetter on the ownership right of private owner in respect of his land which he/she cannot use according to own wishes. Section 127, however, is a fetter upon the power of eminent domain of State and is a valuable safeguard to a citizen against arbitrary action. By enacting Section 127 of Maharashtra RTP Act, 1966 legislature has struck a balance between competing claims of interests of general public as regards the rights of an individual.

55. The next authority in this regard, we proceed to consider is Bhavnagar University vs. Palitana Sugar Mill (P) Lrd. And others, (2003) 2 SCC 111, decided by a three Judges Bench of Supreme Court. It relates to a similar issue raised in the context of Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "Gujarat TPUD Act, 1976"). The facts in aforesaid case were that on 03.03.1986 a development plan was finally published in terms of Gujarat TPUD Act, 1976. The period of 10 years would have lapsed on 02.03.1996 but prior thereto a revised development plan came to be enforced on 20.02.1996. Land in dispute was admittedly owned by private party, namely, Palitana Sugar Mill Pvt. Ltd. and others, but in the development plan it was reserved for certain public purpose relating to establishment of educational institutions or University. Section 20 of Gujarat TPUD Act, 1976 provided for acquisition of land as per the procedure under Act, 1894 and sub-section (2) thereof was similar to Section 54 of U.P. Act, 1973. For our benefit we reproduce Section 20 of Gujarat TPUD Act, 1976 as under:

"20. Acquisition of land : (1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of Section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.

(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of land as aforesaid shall be deemed to have lapsed."

56. The land reserved for public purpose was not acquired by Gujarat Government though a notice, contemplated under Section 20(2) of Gujarat TPUD Act, 1976, was served by owner of private land to Development Authority and State Government and six months time had expired. The defence taken by State and its instrumentality was that the said notice lost its efficacy since before expiry of 10 years period development plan was revised and therefore, the owner of private land could not have claimed any benefit of Section 20(2) of Gujarat TPUD Act, 1976. After going through the entire scheme of Gujarat TPUD Act, 1976, the Court observed that while construing provisions of a statute, the entire scheme should be read as a whole, then Chapter by Chapter, Section by Section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplus age or redundant. True meaning of a statutory provision can be determined on the basis of what it provides by its clear language, with due regard to the scheme of law. Court held that State has power to acquire a private land if it is so required in public interest or for any public purpose and also to give effect to the scheme of Gujarat TPUD Act, 1976, it can reserve certain land for certain specific purposes even if it is owned by some private person, restricting use of such private person, but simultaneously the provisions of statute and scheme has to be read so that right of private owner may be said to be reasonably restricted and not altogether prohibited. An owner of a property, subject to reasonable restrictions which may be imposed by legislature, is entitled to enjoy his property in any manner he likes. Right to use a property in a particular manner or in other words restriction imposed on user thereof, except in the mode and manner laid down under the statute, would not be presumed. A statute has to be read in such a manner so that its beneficial scheme can be executed in a fair and non arbitrary manner and simultaneously while recognizing reasonable restrictions imposed upon a private person, the same should be confined only to the restriction and not complete prohibition in the garb of restriction.

57. Hon'ble Supreme Court in Bhavnagar University vs. Palitana Sugar Mill, (2003) 2 SCC 111, observed in para 31, 32 & 33 as under:

"31. Whereas in terms of Sections 12 and 17 of the said Act, the reservation and designation have been provided, sub-section (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in clauses (b) and (n) of sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act. Sub-section (1) of Section 20 is merely an enabling provision.

32. Sub-section (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.

34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse."

58. Hon'ble Supreme Court has time and again held that provisions should be construed in such a manner that public purpose and public interest is well protected but not to the extent that authorities may get such power which may exceed the limits of reasonableness, fairness and arbitrariness. A plain meaning to the statute would not be resorted to when there is a sense of possible injustice. In such a case, the simple application of words in their primary and unqualified sense is not always sufficient and will sometimes fail to carry out the manifest intention of law-giver as collected from statute itself and nature of subject-matter and the mischiefs to be remedied. If the plain words lead apparently to do some injustice or absurdity and is at variance with, or not required by, the scope and object of legislation, it would be necessary to examine further and to test, by certain settled rules of interpretation, what was the real and true intention of the legislature and thereafter apply the words if they are capable of being so applied so as to give effect to that intention. Where the plain literal interpretation of statutory provisions were to manifestly result in injustice, never intended by the legislature, then Courts are entitled to modify the language used by legislature so as to achieve the intention of legislature and to produce a rational construction. Purpose of law is to prevent brooding sense of injustice. It is not the words of law but the spirit and eternal sense of it makes the law meaningful. It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly.

59. Now in the backdrop of aforesaid exposition of law as well as statutory provisions, we may examine the facts of the instant case. The State Government issued an order dated 16.11.2006 approving the master plan as provided in Section 8 of the Urban Planning and Development Act, 1973 for development of Kanpur Nagar area making effective till 2021. In the said Master Plan, there were proposals for setting up District Parks in Kanpur of an area spanning around 77 hectares and the said areas were earmarked for the same in the aforementioned Master Plan. Consultations started for drafting the Master Plan 2031, and the objections were invited from General public, private parties, etc pertaining to the proposed Master Plan 2031, whereby the Petitioner herein also objected to the said inclusion of its land being earmarked as a district park and similarly, the said objections have also been made by Member of Parliament and Legislative Assembly who are going to be advisers in some capacity as per the proposed Master Plan 2031 making them as important stakeholders, the said objections were rejected by the Authority, although in a first round of litigation, petitioner when approached this Hon'ble Court, directions were issued to consider the representation of the petitioner herein and hence, this second round of litigation has initiated between the parties.

60. The District Park proposed in the Master Plan of 2021 was in periphery of 4 villages Baikunthpur, Gambhirpur, Bagdodhi and Sandila spanning an area of 77 hectares, whereby residential areas do exist. Petitioner being owner of a parcel of land, had served the respondents notice under Section 54 of the Urban Planning and Development Act, 1973 but the same was not considered and 16 years have passed since the Master Plan came into effect and it sought permission from the respondent authority for change of land use into residential but the permission seems to be far fetched as the only plea taken by the respondent authority to non suit the petitioner is that as and when the Authority deems fit a park shall be developed subject to availability of fund, even though the provisions of Section 54 of the Act stand satisfied. The petitioner has contended that they are being denied permission in arbitrary manner by the Authority to develop the land although other people have been provided permission whereby a CNG pump, a Hotel and other activities have been allowed to commence in the said area apart from a state highway being allowed from the said proposed area, they contend to have earmarked for a district park, although the said hotel has been erected partly in common Arazi No. 585 whereby the petitioner herein also shares some land in the aforementioned Arazi No. 585. The action of the Respondent Authority clearly depicts that the land use has already been changed to commercial/ residential by the respondent authority but the same is being denied in the present case in respect of the petitioner.

61. Answering the Adjudicatory Issue No. 1, whether Development Authority is entitled to keep a parcel of land, owned by a private person, reserved for any public purpose under Master Plan or Zonal Development Plan in a manner that owner may not use it for lengthy period of time and State Government or Development Authority may neither acquire the same under Section 54 of the U.P. Act, 1973, it can clearly be made out by perusing the decisions of the Hon'ble Apex Court, that when a parcel of land being owned by a private person is reserved for a Master Plan or Development Plan but in 10 years time, no development takes place and the concerned private person after satisfying the condition of Section 54 of the Urban Planning and Development Act, 1973 can certainly seek release of his land for his private usage as the State Government or the Authority cannot leave an open clause that they shall develop that land as and when the need arises and subject to availability of fund, as stated in the present case. This Court answers this question in the affirmative and in favour of the petitioner relying upon law laid down by the Hon'ble Supreme Court. The State or Authority is to release the land if the private person follows the procedure laid down in Section 54 and the land cannot be retained any further if law has been followed by the person and the power vested as per Section 54 by the legislature.

62. Going by the aforementioned adjudicatory issue one, the second issue also gets answered in the affirmative in favour of the petitioner as per the law laid down by the Hon'ble Supreme Court in favour of owner seeking release of land following the procedure established by law under Section 54 of the U.P. Act, 1973 once the period of 10 years has lapsed since the Master Plan or Zonal Development Plan came into effect and no development has taken place and neither the land was acquired even after giving a notice.

63. In the present case, the land usage of petitioner sharing common Arazi No. 585 with M/s. Kudrat Hotel has already been changed and the said land usage cannot be changed in part and it would have been changed entirely for the said Arazi Number, thus in a way effectively changing the same for petitioner herein as well. The Respondent Authority has allowed for a CNG pump being constructed and functioning in the said district park area, a Hotel being set up and run on the same common arazi number as being shared by petitioner herein and a State Highway being constructed through the middle of the said proposed earmarked area for park. From the maps available on record, several roads are passing from the proposed park area making it not feasible and knowing this, the Authority has in an arbitrary manner rejected the claim of the petitioner herein. There are numerous other areas where District Parks can be constructed having area of more than 25 hectares do exists. Village Sandila having land of 29 hectares as submitted by the counsel for petitioner can also be considered instead of the land of the petitioner.

64. The said area is already residential in nature. Several villages do exist and the proposed park being in the periphery of those villages encompasses within itself several commercial/residential usage already allowed by the Authority and vide common Arazi No. 585, land usage has been changed for the entire arazi automatically changing the same to residential/ commercial usage vide its own orders granting the permission to other projects.

65. In view of the above, prima facie, it appears that the petitioner is entitled for its land back in view of the provisions contained in Section 54 of the Act and the order impugned in the present writ petition deserves to be set aside. Accordingly, the order dated 29.09.2022 passed by the Vice Chairman, Kanpur Development Authority, Kanpur, rejecting the application of the petitioner dated 03.08.2022 under Section 54 of the Act, is set aside.

66. Authority concerned is directed to consider the application of the petitioner under Section 54 of the Act in the light of the observations made herein above and release the land in question, in favour of the petitioner in compliance of Section 54 of the Act, within period of two months from the date of service of a certified copy of this order.

67. The writ petition is, accordingly, allowed. No order as to costs.

 
Order Date :- 11.10.2023
 
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(Ashutosh Srivastava, J.)        (Pritinker Diwaker, CJ)