TaxTMI 
TaxTMI 
2016 (4) TMI 1287
X X X X Extracts X X X X
X X X X Extracts X X X X
....it petition are as under : 3. The disputed premises 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1-A in favour of Kamlesh Goswamy by dividing site No. 21 into 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ide letter 6.4.1979(Annexure-II to the writ petition). 15. Administrator also wrote a letter on 17.11.1979 recommending Collector for grant of lease in favour of Smt. Shapoorji on the ground of premium already paid. Petitioner-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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther as owner or lessee or in any other capacity. 21. It is evident and admitted to all that lease of disputed land expired on 6.2.1961. Renewal was requested by erstwhile lessees but it did not materialise. In the meantime, erstwhile 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... premises after the authority (whether by way of grant or any other mode of transfer) under which or the capacity in which he was allowed to hold or occupy the premises has expired or has been determined for any reason whatsoever and also includes continuance 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, u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Authority(hereinafter referred to as "DDA"). Lease was initially for a period of 20 years i.e., from 11.8.48 to 10.8.68 which was liable for extension/renewal for further period of 20 years at the option of lessee. Original lessee on 23.2.1967 approached DDA for renewal of lease. DDA served notice on 16.2.1968 alleging breach 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... original lessee and respondent based on a sale-deed dated 14.10.1998 executed by original lessee, by invoking Order XXII, Rule 10 of C.P.C. during pendency of appeal before High Court?" 32. While answering question No. 1, Court held that there was no renewal of lease by DDA in favour of original lessee. Court also held that a lease if has 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 an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts) Act, 1971 and that after expiry of lease period the original lessee has become unauthorized occupant in terms of section 2(g) of the said Act in the light of relevant statutory provisions and Rules referred to supra and law laid down by the Constitution Bench of this Court in the case of Ashoka Marketing Ltd. and another (supra), the concurrent findings of the Courts 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 subseque....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atyendra Singh and Smt. Indra Mohini. Neither Petitioner-1 complied with terms and got a fresh lease executed nor other two parties namely, Sri Satyendra Singh and Smt. Indra Mohini complied with the terms and got fresh lease executed. 40. Transfer of possession by petitioner-1 to petitioner-2 and subsequent execution of agreements and sale- deeds all in our view, are patently illegal and 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the counter-affidavit reads as under : "That contents of paragraphs 36, 37, 38 and 39 of the writ petition are absolutely incorrect. It is stated that the proposed construction plans submitted on 2nd September, 1978 only contained proposed construction of first floor; it was then scrutinized by the Engineering Department of the Allahabad Development and requisite charges were calculated and subsequently 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of lease deed by A in favour of C. He, therefore, contended that the decree was obtained by playing 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, ban....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation. In other words, the competent authority was well within its right and power to recall/review such order since the order if obtained by committing fraud or misrepresentation vitiates everything and can be reviewed or recalled at any time. 55. There is another contention that since compounding charges have been paid and therefore, construction whatsoever raised by petitioners must be taken to be valid construction, also has no force 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 enti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d on 7.8.1981, it was clearly in the teeth of the order passed by this Court and petitioners have infact flouted interim order passed by this Court and entire construction raised by petitioners on the disputed site during pendency of writ petition is clearly illegal and amounts to disobedience of interim order passed by this Court, irrespective of power under Act, 1973. 61. It would be appropriate to consider certain provisions of Act, 1973 which talks of master plan and 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... particulars of such amendments within thirty days of the date on which such amendments come into operation." (Emphasis added) 67. Whenever a dispute would arise about the amendment sought to be made by Authority that it effects important alternations in the character of plan etc., the dispute has to be settled by State Government. 68. A perusal of above provision shows that compliance of procedure is mandatory. 69. Section 16 puts an embargo on use or permission to be used of any building or land in a planned area otherwise than in 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 Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d/breached such provision by taking appropriate action, e.g. demolition of building by exercising power under section 27 has not been made inoperated when an offence is compounded. The proceeding prevented as a result of compounding an "offence" relates to offence and illegality/irregularity so prohibited/controlled is under another provision. It may also be noticed that by Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997 (Act No. 3 of 1997) (hereinafter referred to as "Act, 1997"), certain other offences have been provided vide sections 26-D and 28-A. However, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Statute shows that before finalizing a Master Plan, the competent authority shall take all such steps which would include an opportunity to the residents of area concerned and others to submit their suggestions, objections, claims etc. and thereafter it shall be finalized. Once the "Master Plan" is finalized and submitted to Government and notified, thereafter its sanctity cannot be whittled down in a routine, casual and whimsical manner. The statute imposes an embargo against any action which is not consistent with the plan. However in a changing Society, a status quo for all times to come may not be countenanced. An 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n and classification which encourages corruption, is discriminatory and also against human rights. The Court observes as under: "39. In the last 60 years of independence, if there is one field we can boast of a national all round development and that too multifold, it is the field of corruption. It has various shades. It is not confined to only one field of bribery, cash and kind, but has different colours and nuances. 53. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, 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 Will....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lan. The use of land or building which is not in conformity with such plan is totally prohibited. It is also a criminal offence under section 26 of Act, 1973. In fact when there is a case of unlawful encroachment or obstruction, even those who are responsible for preventing such encroachment or obstruction, if failed to do so, are also liable for criminal prosecution and punishment under section 26D of Act, 1973. Section 32 providing composition of offences is only in respect to criminal liability but not to retain contravention of plan which is prohibited by section 16. That contravention if continues will have to face legal consequences. The only saving 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities. and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and illegal construction would never pay and this is also against the interest of Society at large but unfortunately the violators and the officials of local bodies and development authorities responsible for implementation of statute and statutory plans have enjoyed pleasure in more violation than its observance. This has filled rather the coffer of individual officials substantially instead of benefiting the State exchequer. A source of parallel economy commonly known as "black money" has developed which is running unabatedly under the shield provided by the beneficiaries of both the sides, i.e., the public as well as the State. Today, it is an open secret that Real Estate Sector 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 beyon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt. Its importance cannot be undermined. It is for this reason, in every plan, special attention is paid for open land, greenery, that is called green belt, parks, gardens etc. But, then, after approval of plan, when actual execution comes, the first casualty is the area contemplated as open space, green belt, parks etc. Everybody want to curtail such area by encroaching it, obstructing it, making unauthorised construction etc. It appears that a competition is going on and there is struggle of victory to the more resourceful one. It goes without saying that this competition is equally participated by officials for reasons other than bona fide. In other words, this Court has no hesitation in observing 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 1997 (7) SCC 622, the Court said: "Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature." 100. In the present case, as pleaded by petitioners, and, that too, with impunity, that he started construction without getting his map sanctioned and completed the same, shows that no Officer of ADA inspected and intervened unauthorized and illegal construction at any point of time when the construction was going on. It must have taken sufficient long time. It cannot be doubted that the officials of ADA had completely failed to discharge their duties and, therefore, breached 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dual contractors/builders etc. Those who want to raise construction, when their plans/maps etc. are approved by Development Authority if disclose such approved plan/map to the people at large, the construction if made in violation of approved plan, then the people at large would not find it difficult to raise their voice for want of appropriate information. Though under the Right to Information Act, people may go to seek information but here also all possible obstructions are created by authorities in providing these information's. The construction in deviation to approved plan is considered to be a matter of right. Those making illegal construction/encroachment are confident of no complaint since common man has neither appropriate information 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 ultimatel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orting to accountability and responsibility of the Officers of the statutory body. The attempt of violator is to retain benefit from persistent and frequent violation of the statute. Time has come when State Government and ADA should look into the matter and take appropriate steps in the following manner: "(i) ADA is directed to ensure implementation of master plan and zonal development plan etc. strictly in accordance with one as approved under the statute and no change, alternation, amendment be allowed therein except in accordance with procedure prescribed in Act, 1973 and in particular section 13 thereof. (ii) The ADA shall put on its website every sanctioned plan(s)/map(s) etc. of any development/construction in the area under its operation, submitted 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 squ....