TaxTMI 
TaxTMI 
2016 (4) TMI 1287
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....remises being site No. 21 Civil Station, Allahabad was a Nazul land. By an indenture of lease dated 7.2.1861, Secretary of the State for India and Council granted lease in favour of J.B. Smelt for a period of 50 years which expired on 6.2.1911. The lease was renewed for a further period of 50 years vide an indenture of lease dated 22.8.1912 with effect from 6.2.1911 in favour of F.M. Adelaide Sarkies. During subsistence of lease, Collector, Allahabad allowed lessee to carry on business in the disputed premises vide letter dated 31.1.1940. The partition of lease land was sanctioned by Collector vide letter dated 20.11.1948. One portion was described as residential and another commercial. Site No. 21 Civil Station was declared Commercial area and 21-A was declared residential area. Mr. S.J. Shapoorji claiming successor in title to M/s. Adelaide Sarkies, requested Collector, Allahabad to approve partition of disputed premises into two. Collector agreed and permitted such partition subject to enhanced payment of rent by 50%. Two separate lease deeds were executed on 2.5.1949 in joint names of Mr. S.J. Shapoorji and Mrs. Shapoorji for the residue period of existing lease. 4. Mr. Shapoo....
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....nto five plots numbering 1, 1-A, 2, 3 and 4. Smt. Shapoorji also executed sale-deed in respect to plots 2,3 and 4 in favour of Kamla Singh, M/s. Law Book Company and Smt. Urmila Kumari. Plot Nos. 1 and 1-A were already in possession of Sri Dharamvir Goswamy, husband of Smt. Kamlesh Goswamy. 10. Vide letter dated 6.3.1971 Smt. Shapoorji requested Collector for transfer of separate portion (sub Division) of disputed site to respective persons with whom agreements for sale were executed by her. Administrator, Nagar Mahapalika made a recommendation for such transfer vide letter dated 16.3.1971. Smt. Shapoorji claimed that she had paid ground floor rent and last premium to Municipal Corporation on various dates as under : Serial No. Receipt No. Book No. Date Cheque No. Amount Details 1 52 5306 25.10.67 378890/- 29.08.67 9,468/- 8820 plus 648 2 6 6631 27.8.68 235230/16.8.68 9,468/- " " 3 6 7795 27.10.69 182081/14.10.69 9,563/- 8820 plus 648 plus 95 4 37 1335 09/09/70 288433/11.8.70 9,468/- 8820 plus 648 5 32 1952 30.10.71 (01/07/71 to 30.6.72) 012855/24.8.71 9,468/- " " 6 12 3866 24.11.72 304909/28.8.72 9,468/- 8820 plus 648 7 92 3866 ....
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....oner-2 then started constructions over land in question and completed in the year 1980. Mutation of building has been made in favour of petitioner-2 and her son. The building was assessed for house tax and water tax. 16. However, petitioner-1 received, notice dated 12.9.1980 alleging that sanction of map has been obtained by misrepresentation and fraud. A reply denying allegations was given on 27.9.1980. Thereafter Prescribed Authority-Opposite party-2 has withdrawn permission/sanction granted to the plan for construction of building vide order dated 2.12.1980 which was communicated to petitioners vide letter dated 2.3.1981. 17. It is submitted that aforesaid letter is patently illegal. There is no provision for withdrawal of sanction already granted. Impugned order is without jurisdiction. Once sanction is granted, it cannot be withdrawn. There is no fraud or misrepresentation played by petitioners. 18. Counter affidavit has been filed by ADA stating that original lease of site 21 measuring 2 acres: 2999 sq. yards of Civil Station, Allahabad was executed on 7.2.1861 in favour of Mr. James Bearnard Smelt for 100 years renewable at the expiry of 50 years and again for another 50 ....
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.... lessees dealt with disputed property in the manner they liked without realising the fact that they had no right over the land which is Nazul and vested in State. 22. Status of lessees after expiry of period of lease is that of "unauthorised occupants". Lease stands terminated by efflux of time after expiry of original period of lease. There is no automatic or temporary renewal. It has been held by Supreme Court that even Principle of holding over under section 116 of Transfer of Property Act, 1882(herein after referred to as Act, 1882") would have no application in such lease over land owned by State. 23. A question arose, when a lessee, after expiry of period of lease still continues to occupy lease land and even if rent is accepted by lessor, will it satisfy requirement of "Holding Over" within the meaning of section 116 of Act, 1882, in Shanti Prasad Devi and another v. Shanker Mahto and others (2005) 5 SCC 543. Therein Trial Court decided issue in favour of lessee and held that without terminating lease under section 116 of Act, 1882 suit for ejectment could not have been filed but first Appellate Court reversed this judgment. The lessee also lost second appeal before High C....
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....nce in occupation in the circumstances specified in sub-section (1) of section 7 and a person shall not, merely by reason of the fact that he had paid any amount as rent, be deemed to be in authorised occupation." "2(e) "public premises" means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government, and includes any premises belonging to or taken on lease by or on behalf of- (i) any company as defined in section 3 of the Companies Act, 1956, in which not less than fifty-one per cent of the paid-up share capitals held by the state Government: or (ii) any local authority; or (iii) any Corporation (not being a company as defined in section 3 of the Companies Act, 1956 or a local authority) owned or controlled by the State Government: or (iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government, or both: and also includes- (i) Nazul land or any other premises entrusted to the management of local authority (including any building built with Government funds on land belong....
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.... of terms and conditions of lease deed. DDA vide notice dated 1.9.1972 terminated lease which was challenged by original lessee in Original Suit No. 47 of 1975 before Sub Judge, Delhi seeking restraint order against DDA. Suit was decreed by Sub Judge holding that notice dated 1.9.1972 terminating lease was illegal. DDA preferred appeal which was dismissed by Additional District Judge vide judgment dated 29.9.1982. DDA preferred Second Appeal in Delhi High Court, being RSA No. 06 of 1983. During pendency of second appeal, an application under Order XXII, Rule 10 of Code of Civil Procedure (hereinafter referred to as "C.P.C.") alleging that original lessee has sold disputed property through sale-deed to M/s. Anant Raj Agencies Pvt. Ltd.(hereinafter referred to as "subsequent purchaser"). This sale-deed was claimed to have been executed between original lessee and subsequent purchaser pursuant to some compromise decree dated 22.6.1988 passed by High Court in a matter between original lessee and subsequent purchaser. The application of subsequent purchaser for substituting as respondent in second appeal filed by DDA was allowed by High Court. Further subsequent purchaser also applied t....
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....s expired, it would not be necessary for lessor to terminate the same since original lease stands terminated by efflux of time after expiry of period of lease. Court said that Principle of "holding over" under section 116 of Act, 1882 would not be applicable since there was no assent of landlord and mere acceptance of rent by lessor, in absence of an agreement to the contrary, would not render possession of lessee valid. In this regard, Court relied on its earlier decision in Shanti Prasad Devi and another v. Shanker Mahto and others (supra) and Sarup Singh Gupta v. S. Jagdish Singh and others (supra). There could be an implied renewal to attract "holding over" on mere acceptance of rent offered by lessee. 33. In Delhi Development Authority v. Anant Raj Agencies Pvt. Ltd. (supra) Court also held that land vested in DDA is a public premises and that being so, it is governed by Act, 1972, which shall prevail over Act, 1882, a general law governing landlord and tenant's relationship. Referring to definition of "Public Premises", Court said, "It can be concluded that Act, 1882 is not applicable in respect of Public premises". Court held as under : "Therefore, in the instant case....
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....ts below on the contentious issue is not only erroneous but also suffers from error in law and therefore, liable to be set aside. "31. The grant of perpetual injunction by the Trial Court in favour of original lessee, restraining the DDA from taking any action under the said termination notice dated 1.9.1972, on the ground that the termination notice dated 1.9.1972 being illegal, arbitrary and without jurisdiction and the affirmation of the same by both the First Appellate Court, i.e., by the learned ADJ and further by the High Court by its impugned judgment and order are not only erroneous but also suffers from error in law. Thus, Point No. 1 is answered in favour of the appellant." 37. Thereafter, question-2 was considered by Court. It was held that compromise decree between original lessee and subsequent purchaser was void ab initio in law for the reason that original lessee in absence of renewal of lease in his favour himself has no right, title or interest at the time of execution of sale-deed in respect of disputed property. Court said "It is well settled position of law that the person having no right, title or interest in the property cannot transfer the same by way of s....
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.... void. These documents do not confer any right upon the transferee for the reason that Transferor himself or herself having no such right, could not have conferred a better right upon Transferee(s). Transferor also did not had any right whatsoever either to continue in possession over land in question nor to transfer the same to anyone. In fact, an attempt has been made to transfer even title which itself was not vested with transferor. All these transactions are patently illegal. 41. Further, the lease expired on 6.2.1961, had no further chance for renewal. Hence there was no right of renewal. There was no question of invoking option of renewal of lease and for that reason, further original lessee did not get any renewal. State Government's letter dated 4.7.1961 to execute fresh lease in two parts, was neither complied with in terms stated therein nor any fresh lease deed was executed in favour of persons to whom State Government agreed to execute fresh lease. Instead petitioner-1 and other individuals have dealt with property in dispute in the manner, they liked, assuming various rights and interest in the property though none had any right whatsoever, either to transfer or ....
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....ently it was sanctioned by the then Secretary of the Allahabad Development Authority and the District Magistrate, Allahabad. It is further stated that after the sanction order was prepared and before the signatures of the Secretary and the District Magistrate were made, the petitioners hatched a conspiracy with the help of a few employees and fraudulently got removed the original copies of the first floor plans and filed five sets of maps showing second and third floor plans. Smt. Shapoorji, petitioner No. 1, put the date as 11th January, 1979, below her signatures on all the copies of the map. The persons involved in the conspiracy then realised the mistake that the original maps were submitted by petitioner No. 1 on 2.9.1978. Thereafter through over-writing and interpolation the date 11.1.1979 was changed to 11.9.1978 which is evident to naked eye on the scrutiny of the maps. Since the numerical '1' could not be changed clearly to numerical '2' the conspirators put down numericals 11'. The aforesaid fact finds sufficient truth on perusal of the entries in the receipt register maintained in the office of the Allahabad Development Authority, Allahabad. The numbe....
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....ying fraud on the Court and was a nullity. The Trial Court upheld the contention and dismissed the application. The High Court, however, set aside the order of the Trial Court, observing that "there was no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". B approached the Apex Court. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', the Apex Court observed as under: "The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean-hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation". 51. In United India Insurance Co. Ltd. v. Rajendru Singh and others 2001 (42) ALR 451 (SC)....
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....for the same reason that petitioners have no right over the land at all. Even otherwise, we are of the view that unauthorized construction would not stand regularized on payment of compounding charges, since concept of compounding charges is not to regularize unauthorized construction but to compound an offence so that otherwise punishment in the Court of law in a trial may not be inflicted. 56. We may also admit to consider another limb of argument that during pendency of writ petition in continuation of interim order, petitioners have further completed constructions and ADA be directed to regularise same by accepting payment of compounding fee. In our view, neither any such direction can be issued nor such relief can be granted and the entire argument in respect of alleged compounding and regularization is thoroughly misconceived. 57. We find from the Statute that compounding a building is permissible in the Statute under Uttar Pradesh Urban Planning and Development Act, 1973(hereinafter referred to as "Act, 1973") but if an illegal or unauthorized construction has been raised, Development Authority is not empowered to continue such illegal unauthorized constructions by realizi....
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.... development plan and the sanction of map for the purpose of construction on a particular land as a part and parcel thereof. 62. The Act, 1973 gives due importance to Master Plan and Zonal Development Plan. What shall be contained in Master Plan is provided in section 8 of Act, 1973 which reads as under: "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 - (a) 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 (b) 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." 63. The procedure of preparation and approval of Master Plan is provided in sections 10, 11 and 12 which need not be discussed....
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....conformity with such plan. However, if on the date of enforcement of plan, the land or building was used in any other manner, the same would continue subject to terms and conditions as may be prescribed by bye-laws. Use of land or building in violation of plan and where development of land has been allowed to any person or body, in violation of the conditions of such development, such infraction is an offence punishable under section 26 of Act, 1973. 70. Section 27 provides for demolition of a construction made in violation of the plan and procedure to be observed before passing such order of demolition. 71. The offences under Act, 1973 are compoundable under section 32 which reads as under: "32. Composition of offences.- (1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded by, the Vice-Chairman or any officer authorised by him in that behalf by general or special order, on such terms, including any term as regards payment of a composition fee, as the Vice-Chairman or such officer may think fit. (2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proc....
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....r, removal of any raised construction in contravention of Plan and removal of encroachment etc. are governed by a different procedure and steps which would remain unaffected by such compounding. In other words, the compounding under the Act, 1973 is to avoid the criminal liability and punishment on conviction but not to regularize a construction prohibited under the Act for which no relaxation is permissible except when the plan is amended in accordance with section 13 of the Act. 76. We are informed that ADA has passed a resolution to allow unauthorized construction to continue after payment of some amount called as "compounding fee" and the same has been decided by some resolution passed by the said Authority. 77. We are of the view that in the garb of compounding, a resolution of authority or Development Authority itself will not cure the patent defect going to the root of the matter and an illegality will not stand cured and legal with the consent of ADA, since, the statute provides a particular procedure and nothing can be done in a manner other than the procedure prescribed in the statute. 78. When law requires something to be done in a particular manner, things done other....
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....elbow space thus has to be provided which may authorize the competent Authority/body concerned, in a very very limited manner, to make minor deviations to suit the changes. This has been done vide section 13(1) of Act, 1973. Then the State Government has been empowered to alter the plan. However before doing so, again a well considered but a bit cumbersome procedure has been provided which entitles the residents and others also to have their say if they so desire. All these checks and measures are part of the statute to show that an approved plan has to be adhered as a rule and its deviation as a rarity. The authorities on their own, as and when they like, in a sheer administrative indiscreet manner, cannot clothe upon themselves such power. They, on their own, cannot authoritatively say that a particular change will not substantially alter the Plan or that such alternation can be or should be made. 85. Violation of Plan not only attracts a criminal liability but there are civil consequences also. The Authority has been empowered and is also under an obligation to make the things right by removing such violation/deviation and restoring the Plan in its notified state. The basic obj....
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....dinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so." While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely." 54. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourabl....
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.... clause one can read is section 13 whereby a change in plan can be approved by State Government and if that has been done the situation may be different, otherwise the embargo is complete. 88. The reason for making an approved plan sacrosanct and not to be touched easily is very evident. In the developed countries, a lot of emphasis is on the planned development of cities and urban areas. In fact, there the dividing line in urban and rural areas is getting obliterated and one can say that every kind of local body is supposed to proceed with an objective of planned development. The object of planned development can be achieved by rigorous enforcement of plans prepared after careful study of intricate issues of city management, scientific research, rationalization of loss and other issues. The people of developed countries have successfully achieved the objective of planned development contributing largely by strictly adhering to plans, local laws and other directions including restrictions necessary for effective implementation of such plans. They respect the laws enacted by legislature for regulating planned development of cities. One finds seldom complaint of violation of master ....
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....n 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 has to 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 substanti....
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....tor is thriving basically on underhand economy. The apparent finances are like an iceberg comparing the real quantum of money involved. Moreover, the concerted unholy nexus between Reality Sector and Officials cause real loss and detriment to innocent individual who abide law honestly. 93. In Priyanka Estates International Pvt. Ltd. and others v. State of Assam and others. JT 2009 (14) SC 654 the Court observed: "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 o....
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....ng that an overall continuous increasing corruption one can see in development authorities where the development authorities have changed the meaning of "development authority" and read the words as if it amounts to development of officials of authorities. That being so, here come the authority of Courts to check, stop and put the things right. 96. In D.D. Vyas v. Ghaziabad Development Authority. AIR 1993 All 57 this Court considered section 13 and power of authority to make changes in plan and in paras 19 and 22 said as under: "19... From section 13(1), it is manifest that the authority may make only those amendments which do not affect material alterations in the character of the plan. It means the respondents do not' have an absolute right of amending the master plan or the zonal development plan. The basic characteristic of such a plan cannot be altered by the authority. Only that amendment is permissible under section 13(1) which does not affect the basic character of the plan...." 22.... the Authority cannot amend the plan under section 13(1) so as to deprive the public of a public park. Not only the G.D.A. even the State Government cannot alter the plan under sectio....
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....d public confidence, reposed in them, about developing the area under jurisdiction of ADA, in the most beneficial, systematic and co-ordinated manner, as contemplated in the statute. This is not only a complete dereliction of duty but also a serious misconduct on the part of officials concerned and a total failure on the part of ADA also, as an institution, to check these illegal activities, well in time. The notice appears to have been issued only when construction had completed so that some kind of subsequent sympathy or compassion on the pretext of loss of public wealth may be inducted. It appears that a mutual back scratching and coordinated effort is going on amongst the officials of ADA so as to carry on these kinds of activities continuously, frequently and regularly, and, that too, unabated and unchecked. No attempt appears to have been made by ADA as to who is the person(s) responsible for such lapses, as a result whereof, such illegal construction could undergo unabated and unchecked well in time. There is no attempt to fix accountability and take appropriate action. 101. All these demonstrate a patent illegal act on the part of a statutory body and its officials. Nothin....
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....n nor resources in general to fight with such kind of persons and when detected, the violators find it their right to continue with it by asking for compounding. What kind of violation has been made and what is the stage of compounding is also not made known to public at large. This lack of information has also contributed a mushroom growth of illegal, unauthorised obstruction, construction, encroachment etc. all through, changing ultimately the entire plan to such an extent that one finds it very difficult as to what was the actual plan approved and what one has actually got executed, after passage of time. 103. The information regarding development to be undertaken by individuals, whether Government or private, does not lead to opening a window permitting a peep into the privacy of anyone. In a civilised society everybody is entitled to make development on the land or accommodation possessed by him in accordance with law exercising rights available to him but such development cannot be made so as to disturb the general plan conceived by a statutory authority in accordance with statute as that would cause and bound to cause prejudice/detriment, in various ways to other residents ....
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....ubmitted by any individual, Corporate body, Government or its instrumentalities etc., approved on and after 1.1.2001 till date and henceforth. In respect to sanctioned plan of city etc., the same shall also be placed on website. In respect to individual plan(s)/map(s), as above, which shall include colonies, townships etc., the sanctioned plan(s)/map(s) etc. shall be placed on website wherever the area of land is 200 square meters and above; or the building constructed and owned by an individual for his own use, but is three storied and above. In case there is any data problem in a single website, the ADA may open more sites locality wise etc., as advised technically. (iii) If any developer, builder, contractor, individual or corporate or Government etc., as the case may be, has violated sanctioned plan/map and has applied for compounding, the kind of violation and the order passed by ADA compounding the said violation, if any, the reasons for the same and the procedure followed therein shall also be made known to the public at large by giving details on the website, as directed above. (iv) The ADA shall also give details of officers responsible for sanction, inspection, enforc....