# D.B. Kauser v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1159
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Writ-C No. 6183 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/d-b-kauser-v-state-of-u-p-ors-50156
- **Pages:** 14

## Headnote

A. Civil Law - U.P. Urban Planning &
Development Act-1973 - Section 41(3)-
Once the Commissioner, in his order dated
02.05.1994, held the constructions raised
by the respondent no.5 as unauthorized,
illegal and contrary to law and the said
order, though challenged by means of writ
petition, but the challenge failed in terms
of dismissal of the petition on 16.12.2005
and then order dated 30.01.2006 passed
by the Commisisoner on review was
further
set
aside
by
this
Court
on
14.05.2012 and was not interferred with
by the Supreme Court while dismissing
Special Leave Petition on 09.11.2012,
there is nothing on record to show or
establish that the constructions raised by
the respondent no.5 were lawful. The
effect of these orders cannot be ignored
whether the order impugned is an order
on merit or simply an order of remand-The
dispute travelled from a personal tussle in
between the private persons on the spot
to the District Adminstration, then Police
Authorities, then Development Authority,
then Commissioner of the Division, then
this Court in various writ petitions, then
again the Commissioner, followed by
another intervention by this Court, then
Supreme Court and, thereafter, revision
before the State Government giving rise to
the present writ petition. Once, the land
became disputed in this manner, then,
even as per the Development Authority,
compounding is not permissible-Insofar as
the direction of remand is concerned,
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
certainly
the
Development
Authority,
being
sub-ordinate
to
the
State
Government, as per the Scheme of 1973,
would take up the matter of compounding
of constructions and would deal with the
same in one or the other way and such a
decision would give rise to further rounds
of litigation by either side-At this juncture,
the legal maxim "interest republicae ut sit
finis litium" which means that it is in the
interest of State that there must be an end
to the litigation-litigation once finalized,
leaves no doubt that compounding is not
permissible in the present case and,
therefore, the impugned order remanding
the matter to the Development Authority
for deciding the compounding issue is
unsustainable and contrary to factual and
legal position well established on record.

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,637 of 47,128. This is a partial read: ask again with offset=39637 for what follows._

5 All. D.B. Kauser Vs. State of U.P. & Ors.
1159
Section 38 of the Registration Act, 1908
and shall himself go to Jail in which the
convict is confined and take appropriate
steps for registration of the said sale deed.

12. Let the exercise of execution and
signing of sale deed be completed within
fifteen days of receipt of certified copy of
this order, if the occasion so arises and,
thereafter,
for
the
purposes
of
registration of the said document, the
Sub Registrar, Malihabad,Lucknow or
whosoever is the the Sub Registrar
having jurisdiction over the matter
would visit the District Jail, Lucknow,
where the son of the petitioner is said to
be lodged within fifteen days so that the
sale deed is registered in terms of the
aforesaid provisions unless there is any
legal impediment in this regard in which
case,
he
shall
inform
the
Jail
Superintendent in writing, who in turn
shall inform the son of the petitioner.

13. Ms. Shagun Srivastava, Holding
Brief
appearing
for
the
State
shall
communicate this order to concerned for
compliance.

14. The Senior Registrar of this Court
at Lucknow shall communicate this order
to the District Judge, Lucknow and
Secretary, District Legal Aid Services
Authority, Lucknow for compliance.

15. Petition is disposed of in the
aforesaid terms.
----------
(2023) 5 ILRA 1159
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.
Writ-C No. 6183 of 2016

D.B. Kauser ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Rollie Kausar, Sri Ravi Kant, Ms. Seema
Aggarwal, Sr. Advocate

Counsel for the Respondents:
C.S.C., Sri H.P. Singh, Sri Nisheeth Yadav, Not
Known, Sri Prakash Chandra Srivastava, Sri
Prakash Chandra Srivastava, S.C., Sri Sriprakash
Singh

A. Civil Law - U.P. Urban Planning &
Development Act-1973 - Section 41(3)-
Once the Commissioner, in his order dated
02.05.1994, held the constructions raised
by the respondent no.5 as unauthorized,
illegal and contrary to law and the said
order, though challenged by means of writ
petition, but the challenge failed in terms
of dismissal of the petition on 16.12.2005
and then order dated 30.01.2006 passed
by the Commisisoner on review was
further
set
aside
by
this
Court
on
14.05.2012 and was not interferred with
by the Supreme Court while dismissing
Special Leave Petition on 09.11.2012,
there is nothing on record to show or
establish that the constructions raised by
the respondent no.5 were lawful. The
effect of these orders cannot be ignored
whether the order impugned is an order
on merit or simply an order of remand-The
dispute travelled from a personal tussle in
between the private persons on the spot
to the District Adminstration, then Police
Authorities, then Development Authority,
then Commissioner of the Division, then
this Court in various writ petitions, then
again the Commissioner, followed by
another intervention by this Court, then
Supreme Court and, thereafter, revision
before the State Government giving rise to
the present writ petition. Once, the land
became disputed in this manner, then,
even as per the Development Authority,
compounding is not permissible-Insofar as
the direction of remand is concerned,
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
certainly
the
Development
Authority,
being
sub-ordinate
to
the
State
Government, as per the Scheme of 1973,
would take up the matter of compounding
of constructions and would deal with the
same in one or the other way and such a
decision would give rise to further rounds
of litigation by either side-At this juncture,
the legal maxim "interest republicae ut sit
finis litium" which means that it is in the
interest of State that there must be an end
to the litigation-litigation once finalized,
leaves no doubt that compounding is not
permissible in the present case and,
therefore, the impugned order remanding
the matter to the Development Authority
for deciding the compounding issue is
unsustainable and contrary to factual and
legal position well established on record.

The writ petition is allowed. (E-6)

List of Cases cited:

1. Dhananjaya Reddy Vs St. of Karn. (2001) 4
SCC 9 para 23

2. Commr. of Income Tax, Mumbai Vs Anjum
M.H. Ghaswala (2002) 1 SCC 633

3. Captain Sube Singh & ors.. Vs L.G. of Delhi &
ors. (2004) 6 SCC 440

4. Competent Authority Vs Barangore Jute
Factory & ors.. (2005) 13 SCC 477

5. St. of Jhar. & ors. Vs Ambay Cements & anr..
(2005) 1 SCC 368 para 26

6. Dr. Santosh Dixit & anr.. Vs St. of U.P. & ors..
(2017) 3 ADJ 401 (DB)

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. This writ petition has been filed
challenging the order dated 07.01.2016
whereby the State Government, in exercise
of powers under Section 41(3) of the U.P.
Urban Planning & Development Act-1973
(hereinafter referred to as 'the Act-1973'),
has decided a Revision No.33/12 (Smt.
Lakshmi Singh v. Allahabad Development
Authority & Ors.) remanding the matter to
the Allahabad Development Authority with
a direction to dispose off the compounding
map submitted by the revisionist (Lakshmi
Singh) in 2005, after providing opportunity
of hearing to all the parties and in the light
of Rules, Bye-laws and Government Orders
relating to compounding.

2. The petitioner has also claimed
quashing of all proceedings pursuant to the
application filed by the respondent no.5 for
compounding
of
unauthorized
constructions with a further prayer to direct
the Development Authority to demolish the
unauthorized constructions allegedly raised
by the respondent no.5 allegedly over the
petitioner's plot.

Facts of the case.

3. The Secretary of Anant Avas
Sahkari Samiti Limited (in short 'Society')
purchased free-hold land covered Arazi
Nos. 91, 92, 93, 125 and 126/1, Mauja
Muirabad,
Allahabad
from
one
Mr.
Theodere Hughes, vide registered sale
deeds dated 22.10.1986 and 28.01.1987.
The petitioner purchased a plot bearing
No.12-A over Arazi Nos.91 and 126/1
measuring 25' x 70', vide registered sale
deed 16.07.1987 from the Society. It is
stated that Mr. Shiva Mohan Singh
Advocate, husband of respondent no.5
(Lakshmi Devi), committed a criminal
trespass over the petitioner's plot on
12.01.1990
and,
thereafter,
again
on
14.04.1990 in association with one Mr.
Rama Shanker Misra, although the said
persons neither had any contract for sale in
their favour nor any sale deed executed by
the Society. Description of various plots
transferred by the Society in favour of other
persons has also been given in the writ
5 All. D.B. Kauser Vs. State of U.P. & Ors.
1161
petition. It is pleaded that name of the
petitioner was mutated in the revenue
records pursuant to the sale deed dated
16.07.1987 and that it was only in the year
1996 that the Allahabad Development
Authority included the aforesaid land under
the master plan for construction of
residential houses.

4. It is pleaded that land of Arazi
No.126-अ belonging to one Minhazuddin
was 19 Biswa since 1913 A.D. onwards and
his rights, after his death, were succeeded
by Smt. Shaiyma Begum, Smt. Asma Bibi
and Mr. Shamim Ahmad and, thereafter, the
said
persons,
in
collusion
with
the
concerned Lekhpal of Tehsil Sadar, Chail,
Allahabad, tempered the revenue records in
the year 1982 and illegally got the area of
Plot No.126-अ increased from 19 Biswa to
33 Biswa. It is pleaded that Arazi No.126-अ
is adjacent to the land covered by Arazi
Nos.126/1 and 91. It is further pleaded that
husband of respondent no.5 and Mr. Rama
Shankar
Mishra
committed
criminal
trespass over the petitioner's land on
12.01.1990 at the strength of muscle power
and dug foundation with an intent to usurp
the
petitioner's
land
alongwith
the
adjoining land belonging to other plotholders and this act of the aforesaid persons
led the petitioner to move complaints
before the District Magistrate as well as
police authorities who, by order dated
12.01.1990
stopped
the
act
of
encroachment and digging exercise. It is
pleaded that second time criminal trespass
over the petitioner's land was committed on
14.04.1990 which was also complained of
to the district authorities and because of
their intervention, the act of trespass could
be
restrained.
Necessary
documentary
evidence regarding the aforesaid acts has
been annexed alongwith the writ petition. It
is further pleaded that later on, a contract
for sale was got executed in respect of two
plots having dimensions 20' X 57' and 50'
X 57' on 29.05.1990 and 16.06.1990 in
favour of Smt. Mangla Mishra D/o Mr.
Rama Shanker Mishra and the respondent
no.5 showing the land covered by the said
agreements to be situated in Arazi No.126अ. It is pleaded that on the dates of trespass
i.e. 12.01.1990 and 14.04.1990, the said
persons
did
not
had
any
legal
deed/agreement in their favour.

5. It is further pleaded that on
27.06.1990, the petitioner approached the
Vice-Chairman
of
the
Allahabad
Development
Authority
requesting
demolition of unauthorized constructions
raised by the aforesaid persons and,
consequently, the Development Authority
issued
a
demolition
notice
dated
25.09.1990 under Section 27(1) of the Act1973. Apprehending demolition, two sale
deeds were executed respectively in favour
of Mangla Mishra and respondent no.5 on
29.05.1990
and
16.06.1990.
Various
proceedings on administrative side have
been referred by the petitioner in the writ
petition, however, since the matter relates
to validity of constructions raised by
respondent no.5 vis-a-vis an issue of
compounding of the said constructions, I
would deal with only those aspects which
are relevant for pronouncing the judgement
on the said issue.

6.
It
is
further
pleaded
that
apprehending demolition, a sale deed was
executed in favour of respondent no.5 on
18.01.1991 through Attorney Aftab Ahmad
and that the State filed a case under
Sections 33/39 of the U.P. Land Revenue
Act-1901 against the aforesaid legal heirs
Smt. Shaiyma Begum, Smt. Asma Bibi and
Shamim Ahmad, in which, the Sub
Divisional Officer, Sadar, Chail, Allahabad
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
by order dated 12.03.1991 restored back
the area of Arazi No.126-अto its original
figure i.e. 19 Biswas which was entered
into the revenue records. It is further
pleaded that since the sale deed dated
18.01.1991 executed through the attorney
was in relation to the 22 biswas, pursuant to
the order dated 12.03.1991, the power of
attorney executed in the year 1989, the
contracts for sale executed in the year 1990
and the sale deed executed in the year 1991
rendered non-est in the eyes of law. It is
further pleaded that pursuant to the
demolition
notice
issued
by
the
Development
Authority,
partial
constructions raised by the respondent no.5
were demolished on 18.03.1991 and
21.03.1991 and against demolition orders
two appeals were filed before respondent
no.2, being Appeal Nos.19/1991 and
24/1991.

7. The aforesaid appeals were
dismissed by the Commissioner, Allahabad,
Division-Allahabad
vide
order
dated
02.05.1994 and the following conclusion
was drawn:-

"स्वद्वाि अस्धवक्ताओुं की बहस को सुििे ििा पत्रावली पर
उपलब्ध कागजािों को देखिे के बाद में इस स्िष्कर्ष पर पहुूँचिा ह ूँ
स्क अपीलकिाष द्वारा प्रथिुि मािस्चत्र अथवीकृि कर स्दया गया िा
ििा उसके द्वारा स्बिा मािस्चत्र थवीकृि कराये हुए अिास्धकृि
स्िमाषण स्कया गया िा स्जसका आुंस्शक रूप ध्वथिकरण कर स्दया
गया िा। उसके पिाि उसके द्वारा प्रथिुि अपील पर इस न्यायालय
द्वारा थथ्गिादेश स्दया गया िा। अपीलकिाष के स्वद्वाि अस्धवक्ता यह
स्सद्ध करिे में असमिष रहे स्क एिरफा कायषवाही स्वकास प्रास्धकरण
द्वारा की गयी है। अपीलकिाष के पस्ि पर बाकायदा िोस्टस िामील है
क्योंस्क उन्हीं के द्वारा मकाि का स्िमाषण कायष कराया जा रहा िा।
स्ियमों में भी ऐसे व्यस्क्त पर िोस्टस िामील मान्य है। अपीलकताय
द्वारा कराया गया निमायण कायय अिानिकृत नसद्ध हो िुका है।
अतः संयुक्त सनिव द्वारा पाररत आदेश नदिांक 25.9.90 तथा
21.3.91 में कोई अनियनमतता या अवैिानिकता िहीं है।
दोिो अपीलें बलहीि हैं नजसे एतदद्वारा निरस्त नकया जाता
है।"

8. The Commissioner, as such, held
that the demolition orders passed on
25.09.1990
and
21.03.1991
were
in
accordance
with
law
and
that
the
constructions raised by the respondent no.5
had proven to be unauthorized.

9. Challenging the order dated
02.05.1994, the respondent no.5 filed writ
petitions being Writ C Nos.21024 of 1994
and 21025 of 1994, in which, an interim
order was passed on 06.07.1994 but despite
the said interim order, the respondent no.5
raised
constructions
of
three-storeyed
building on the spot. The aforesaid writ
petitions
remained
pending
and
the
petitioner being person aggrieved by the
unauthorized raising of constructions over
his plot, filed an impleadment application
as well as certain affidavits. However, the
respondent no.5 being petitioner in the
aforesaid writ petitions, got the same
dismissed as withdrawn on 16.12.2005.

10. After withdrawing the aforesaid
writ petitions, the respondent no.5 filed a
review
application
before
the
Commissioner
who,
by
order
dated
30.01.2006, directed that the matter of
compounding of constructions be examined
by
the
Development
Authority
in
accordance with law at the rates which
were applicable in 2005-2006. Even in the
said order, it was clearly recorded that
unauthorized constructions were raised by
the respondent no.5 and her husband-Shiv
Mohan Singh.

11. The petitioner challenged the
order dated 30.01.2006 by filing Writ C
No.22184 of 2006 (D.B. Kauser & Anr. v.
Shiv Mohan Singh & Ors.). This Court, by
order dated 14.05.2012, allowed the writ
petition and quashed the order dated
30.01.2006
by
observing
that
the
5 All. D.B. Kauser Vs. State of U.P. & Ors.
1163
compounding
map
submitted
by
the
respondent no.5 was rejected in the year
1991, against which two appeals were filed
before the Commissioner, which were
dismissed on 02.05.1994 and, thereafter,
writ petition filed against the said order was
dismissed as withdrawn on 16.12.2005. The
Court further observed that Commissioner
had no power to review his previous order
and, consequently, it was held that the order
dated 30.01.2006 was wholly without
jurisidiction.

12. The dismissal order dated
14.05.2012
was
challenged
by
the
petitioner of the said writ petition before
the Supreme Court by filing Special Leave
Petition
which
was
dismissed
on
09.11.2012.

13. Thereafter, the respondent no.5
preferred a Revision No.33 of 2012 (Smt.
Lakshmi Singh v. Allahabad Development
Authority & Ors.) on 21.06.2012 under
Section 41(3) of the Act-1973 challenging
the order dated 02.05.1994 passed in
Appeal Nos.19/1991 and 24/1991. The said
revision has been decided by order dated
07.01.2016 which has been impugned in
the present writ petition. There is no
dispute about the fact that the petitioner
was initially not impleaded in the revision,
however, impleadment was allowed by the
State
Government
by
order
dated
15.07.2015
and,
consequently,
the
petitioner
was
heard
by
the
State
Government.

Foundation of the writ petition.

14. The petitioner has assailed the
order impugned by taking various factual
and legal grounds which shall be dealt with
while discussing the rival contentions of
the parties. In sum and substance, the writ
petition is founded on the premise that once
the
Development
Authority
and,
thereafter the Commissioner held the
constructions raised by the respondent
no.5 as illegal and unauthorized and the
compounding map was also rejected,
against which writ petition was filed
which was dismissed as withdrawn and,
thereafter, a review application was
allowed by the Commissioner but the
said order was quashed in petitioner's
writ petition by order dated 14.05.2012
which was further affirmed by the
Supreme Court, nothing remained to be
decided at the level of State Government
and it was a simple case where no
direction
for
consideration
of
compounding issue could be issued by
the State Government.

Counter affidavits

15. A counter affidavit has been field
by the respondent no.5 making averments
regarding
her
title
pursuant
to
the
Agreement for sale of 1990 and sale deed
of 1991 and it is pleaded that dispute
regarding ownership of the land cannot be
decided by the Development Authority but
by civil or revenue court. The allegations of
trespass have been denied in the counter
affidavit and the order impugned has been
supported.

16. A counter affidavit has been filed
on behalf of the Allahabad Development
Authority as well as its Zonal Officer,
stating that the order impugned is an order
of remand and the title of the property
would be looked into at the time of
deciding the issue relating to compounding.
Compounding Byelaws of 2009 which
came into force w.e.f. 14.01.2010 have
been annexed alongwith the said counter
affidavit.
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Various affidavits have been
exchanged in the matter, however, I find
that their contents are repetitive in nature.
Nevertheless, it is necessary to refer to an
affidavit dated 08.12.2021 filed by the
petitioner alongwith which a report dated
15.09.2021
of
Lekhpal,
Tehsil-Sadar,
Prayagraj has been annexed which reads as
follows:-

"महोदय,

सलंग्ऩ प्राथशना पत्र द्वािा िौली कौसि पुत्री D.B. कौसि
जनवाजसनी - 100 H.I.G. कालोनी ममफोडशगंज तहसील सदि
जजला प्रयागिाज की पुनः जांि की गई जािोंपिान्त जबन्दु संख्या
- 5(A), B, C, के सम्बन्ध में जांि आख्या जनम्नजलजखत है-

5(A)= मकान न० 18 B /2 औि मकान नं० 18B/
3 आिाजी संख्या 91 व 126/1 ग्राम म्योिाबाद में जस्थत है।

5(B)= मकान नं० 18B/2 श्रीमती लक्ष्मी जसंह द्वािा
बनवाया गया है तथा मकान नं० 18B/3 श्रीमती मंगला जमश्रा
द्वािा बनवाया गया है।

5(C)= श्रीमती लक्ष्मी नसंह और श्रीमती मंगला
नमश्रा द्वारा आराजी संख्या 126(अ) में शायमा बेगम व
शमीम अहमद व आसमा बीबी से क्रय नकया था परन्तु
इि लोगो द्वारा क्रय की गई जमीि पर निमायण ि करके
आराजी संख्या -91 व 126/1 में कर नलया गया है। जब
नक उक्त जमीि vuUr सहकारी सनमनत की थी।

रिपोटश सेवाथश प्रेजर्त है।

Sd.
15.09.21 "

Contention of the petitioner

18. The contention of the petitioner is
that
the
order
impugned
has given
unbridled license to the Development
Authority to act recklessly, capriously and
arbritarily
at
its
will
to
compound
constructions raised by the law-breakers in
defiance of the provisions of the Act-1973;
the order impugned ignores the order dated
02.05.1994, passed by the Commissioner,
Allahabad,
Division-Allahabad,
orders
dated 16.12.2005 and 14.05.2012 passed by
this Court, order dated 09.11.2012 passed
by the Supreme Court and has been passed
in ignorance of the fact which is established
on record that at the time of raising of
unauthorized constructions, the respondent
no.5 was not having any title over the land
and, even otherwise, it stands established
that the constructions have been raised
during the pendency of the writ petition
filed in the year 1994 and over the land of
the petitioner which has been fraudulently
usurped by the violaters of law. Further
argument is that once the constructions
have already been found to be illegal and
said
orders
have
attained
finality,
compounding is not permissible. It has
been further argued that matter has been
unnecesarily remanded to the Development
Authority, reopening a closed chapter. The
petitioner
has
referred
to
various
documents to the Court which include the
action taken at the level of district
administration, police authorities as well as
revenue authorities to establish that the
respondent no.5 has not only grabbed the
petitioner's
plot
but
also
raised
unauthorized constructions over the land of
the petitioner which are contrary to the
provisions of the Act-1973.

Contention of the respondent no.5

19. It has been argued on behalf of
respondent no.5 that the petitioner is raising
a title dispute which is beyond the
jurisdiction of the Development Authority
and since by the order impugned, the
matter of compounding of constructions is
yet to be examined, the order impugned
needs no interference and, insofar as, title
issue is concerned, the petitioner is at
liberty to approach civil/revenue court.

Contention
of
respondentDevelopment Authority
5 All. D.B. Kauser Vs. State of U.P. & Ors.
1165

20. Shri Nisheeth Yadav, learned
counsel has vehemently argued that as on
today, no decision has been taken by the
Development Authority compounding the
constructions of respondent no.5 and
pursuant to the order of remand, the said
aspect would be examined. Shri Yadav has,
by
referring
to
Clause
3.2
of
the
Compounding Byelaws of 2009, argued
that no compounding of constructions
raised over the disputed plot is permitted
and, therefore, while considering the
compounding issue, this aspect would also
be examined. For a ready reference,
relevant portion of Clause 3.2 of the
Compounding
Byelaws
is
reproduced
hereinbelow:-

"3.2 जनम्नजलजखत अपिाध शमनीय नही होगेंः-

3.2.1 सावशजजनक व अध्दश - सावशजजनक सुजवधायों,
सेवाओं एवं उपयोजगताओं यथा - सडक, िेलवे लाइन, पाकश,
ग्रीनवजश आजद हेतु आिजक्षत अथवा उनसे सम्बजन्धत भूजम पि जकया
गया जनमाशण।

3.2.2. महायोजना या जोनल डेवलपमेन्ट प्लान या ले-
आउट प्लान या लीज में जनधाशरित भू-उपयोग के जवपिीत जकया गया
जनमाशण।

3.2.3 अवैध भू-उपजवभाजन जजसका जनयजमतीकिण नही
हुआ है, के अन्तगशत जस्थत भूखण्ड पि अथवा भवन में जकया गया
जनमाशण।
3.2.4 सिकािी या सावशजजनक भूजम पि जबना सम्बजन्धत जवभाग की
अनुमजत से जकया गया जनमाशण।
3.2.5 जववाजदत भूजम पि जकया गया जनमाशण।"

Contention of learned Standing
Counsel

21. It has been argued on behalf of the
State that the order impugned is noninjurious to all the parties as the State
Government has directed consideration of
matter of compounding with a clear
stipulation that all the parties shall be
provided opportunity of hearing and that an
order would be passed by the Development
Authority in the light of the relevant Rules,
Regulations, Bye-laws and Government
Orders.

22. I have heard Ms. Rollie Kausar,
petitioner
in
person
who
has
been
substituted after death of her father, i.e. the
sole petitioner, Shri C.B. Singh, learned
Standing Counsel appearing on behalf of
respondent nos.1 and 2, Shri Nisheeth
Yadav, learned counsel appearing on behalf
of A.D.A. i.e. respondent nos.3 and 4, Shri
Prakash
Chandra
Srivastava,
learned
counsel appearing on behalf of respondent
no.5 and perused the records.

23. Since the issue involved in the
writ petition is as to whether the
compounding of constructions raised by the
respondent no.5 can be considered pursuant
to the order of remand and as to whether
order of remand is in accordance with law,
I would deal with basic concept of
compounding of constructions in the light
of
judicial
pronouncements
and
the
provisions contained in the Act-1973.

24. The Act of 1973 does not contain
any
provision
for
compounding
of
constructions. However, there is a provision
for composition of offences under Section
32 of the Act 1973 which reads as follows:-

"32. Composition of Offences.- (1)
Any offence made punishable by or under
this Act may either before or after the
institution of proceedings, be compoundedby 1[the Vice-Chairman (or any officer
authorised by him in that behalf by General
or Special order)] on such terms, including
any terms as regards payment of a
composition fee, as 2[the Vice-Chairman]
(or such officer) may think fit.
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Where an offence has been
compounded, the offender, if in custody,
shall be discharged and no further
proceedings shall be taken against him in
respect of the offence compounded."

25. The offences arising out of
unlawful or unauthorized constructions are
described in Section 26 of the Act-1973
which reads as follows:-

"26. Penalties.- (1) Any person who
whether at his own instance or at the
instance of any other person or any body
(including a department of Government)
undertakes or carries out development of
any land, in contravention of the Master
Plan or Zonal Development Plan or
without
the
permission,
approval
or
sanction referred to in Section 14 or in
contravention of any condition subject to
which
such
permission
approval
or
sanction has been granted, shall be
punishable with fine which may extend to
1[Fifty thousand rupees], and in the case of
a continuing offence, with further fine
which may extend to 2[Two thousand five
hundred rupees] for every day during
which
such
offence
continues
after
conviction for the first commission of the
offence.

(2) Any person who uses any land or
building in contravention of the provisions
of Section 16 or in contravention of any
terms
and
conditions
prescribed
by
regulations under the proviso to that
section shall be punishable with fine which
may extend to 3[twenty-five thousand
rupees and in the case of a continuing
offence, with further fine which may extend
to 4[One thousand, two hundred and fifty
rupees] for every day during which such
offence continues after conviction for the
first commission of the offence.

(3) Any person who obstructs the entry
of a person authorised under Section25 to
enter into or upon any land or building or
molests such person after such entry shall
be punishable with imprisonment for a term
which may extend to six months, or with
fine which may extend to one thousand
rupees, or with both."

26. Further there is a provision of
realisation of fine as per Section 31 of the
Act-1973 which reads as follows:-

"31. Fines when realised to be paid to
the
Authoriy.-All
fines
realised
in
connection with prosecutions under this Act
shall be paid to the Authority."

27. Therefore, the offences which can
be compounded are the offences of
prosecution/fine and there is no provision,
under which, unauthorized constructions
can be compounded at least under the Act.
However, at the same time, the effect of
Compounding Bye-laws would also be
examined but one thing is clear that even in
the Bye-laws of 2009 relied upon by the
Development
Authority
as
quoted
hereinabove, the word "constructions" has
not been mentioned, rather the word "अपिाध
" ("offence") has been used, meaning
thereby, that even the Bye-laws speak of
composition
of
"offences"
and
not
compounding of "constructions".

28. This Court finds that there is no
provision under the Act, 1973 which
entitles the Authority to go for profiteering
on an illegal act of encroachment or
unauthorized construction in the name of
compounding.
The
compounding
contemplated in Section 32 is certainly in
respect to offences punishable under the
Act. It nowhere provides that once an
offence is compounded, an act, which is in
5 All. D.B. Kauser Vs. State of U.P. & Ors.
1167
violation
of
Plan,
shall
also
stand
regularized or become valid. The effect of
compounding is provided in Sub-section
(2) of Section 32 that an offender, if in
custody, shall be discharged and no further
proceedings shall be taken against him in
respect to the "offence" compounded. This
is with regard to the criminal liability
fastened upon the person for committing an
offence under the Act, 1973. But the
prohibition contained in the Act and
statutory obligation upon Authorities to set
right a person who has faulted/breached
such provision by taking appropriate
action, e.g. demolition of building by
exercising power under Section 27 has not
been made un-operated when an offence is
compounded. The proceeding prevented as
a result of compounding an "offence"
relates to offence and illegality/irregularity
so prohibited/controlled under another
provision. It may also be noticed that by
U.P. Act No. 3 of 1997 (hereinafter referred
to as "Act, 1997"), certain other offences
have been provided vide Sections 26D and
28A. However, removal of any construction
raised in contravention of Plan and removal
of encroachment etc. are governed by a
different procedure and steps which would
remain uneffected 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.

29. In Dhananjaya Reddy v. State of
Karnataka 2001 (4) SCC 9 in para 23 of
the judgment, the Supreme Court held :-

"It is a settled principle of law that
where a power is given to do a certain
thing in a certain manner, the thing must be
done in that way or not at all."

30. In Commissioner of Income Tax,
Mumbai v. Anjum M.H. Ghaswala 2002
(1) SCC 633, it was held :-

"It is a normal rule of construction
that when a statute vests certain power in
an authority to be exercised in a particular
manner then the said authority has to
exercise it only in the manner provided in
the statute itself."

31. The judgments in Anjum M.H.
Ghaswala (supra) and Dhananjaya Reddy
(supra) laying down the aforesaid principle
have been followed in Captain Sube Singh
& Ors. v. Lt. Governor of Delhi & Ors.,
2004 (6) SCC 440.

32. In Competent Authority v.
Barangore Jute Factory & Ors., 2005 (13)
SCC 477, it was held :-

"It is settled law that where a statute
requires a particular act to be done in a
particular manner, the act has to be done in
that manner alone. Every word of the
statute has to be given its due meaning."

33. In State of Jharkhand & others
v. Ambay Cements & another, 2005 (1)
SCC 368 in para 26 of the judgment,
Supreme Court held : -

"It
is
the
cardinal
rule
of
interpretation that where a statute provides
that a particular thing should be done, it
should be done in the manner prescribed
and not in any other way."

34. This Court in the case of Dr.
Santosh Dixit & Anr. v. State of U.P. &
Ors. 2017 (3) ADJ 401 (DB) has
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
elaborately
dealt
with
the
issue
of
compounding of unauthorized consructions
and it has been held that the violators of
law cannot be benefitted under the garb of
something which the law does not permit.
It has been held that a deviation or
violation from a Scheme or Plan cannot be
made a means of profiteering by collecting
huge amount from offenders/ violators and
permitting them to continue to enjoy such
deviation. If this stand is sustained, it
would mean that the Statute is being read in
a manner so as to confer an immunity upon
the resourceful people to violate law and
permit them to continue to enjoy such
violation for all times to come by paying
some amount to the Authority. These
violators basically come from elite class.
They find it easier vis-a-vis their status to
part away any amount of money so as to
retain the information of plan. It adds to
their status also. Most of the builders have
made
it
a
part
of
their
business.
Simultaneously, the Development Authority
also stands financially (officially and
privately)
benefited
in
allowing
contravention of plan and violation of a
statutory embargo without exercising its
power of restoration by taking action of
demolition etc. If such an interpretation is
upheld, it would not only encourage
corruption and element of extraneous
consideration but would also create two
classes; one those who are bound to suffer
in their efforts of making any deviation
from Master Plan since they lack financial
resources to pay the so called compounding
fees for continuing to enjoy the illegal and
unlawful deviation; and, those who are
rich, resourceful and capable to do so.

35.

While
making
certain
observations in respect to corruption
prevailing in the Society, this Court in Smt.
Mithilesh Kumari v. State of U.P. and
others, 2011(1) ADJ 40 has observed that
such creation and classification which
encourages corruption, is discriminatory
and also against human rights. The Court
observed that in the last 60 years of
independence, if there is one field we can
boast of a national allround 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.

36. It has further been observed that
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.

37. 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.

38. 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.

39. Corruption is a term known to all
of us. Precise meaning is illegal, immoral
5 All. D.B. Kauser Vs. State of U.P. & Ors.
1169
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
favourable, privileged treatment from those
who are in authority. No one would indulge
in corruption at all if those who are in
authority, discharge their service by treating
all equally.

40. Corruption violates human rights.
It discriminates against the poor by denying
them access to public services and
preventing from exercising their political
rights on account of their incapability of
indulging in corruption, of course on
account of poverty and other similar related
factors. Corruption is, therefore, divisive
and makes a significant contribution to
social
inequality
and
conflict.
It
undermines respect for authority and
increases
cynicism.
It
discourages
participation of individuals in civilised
society and elevates self interest as a guide
to conduct. In social terms we can say that
corruption develops a range bound field of
behaviour, attitude and beliefs. Corruption
is antithesis of good governance and
democratic politics. It is said, that when
corruption is pervasive, it permeates every
aspect of people's lives. It can affect the air
they breathe, the water they drink and the
food they eat. If we go further, we can give
some terminology also to different shades
of corruption like, financial corruption,
cultural
corruption,
moral
corruption,
idealogical corruption etc. The fact remains
that from whatever angle we look into it,
the ultimate result borne out is that, and the
real impact of corruption is, the poor
suffers most, the poverty groves darker, and
rich become richer."

41. Further this Court in the case of
Mr. G.S.J. Shapoorjee v. Allahabad
Development Authority & Ors., 2016 11
ADJ 524 has held in paragraph 45, 46, 56,
57 and 58 as under:-

45. ........Mere fact that map was
sanctioned and thereafter constructions
were raised, would make no difference for
the reason that all transactions were void
ab initio. The petitioners had no right over
land, they were unauthorised occupants,
hence question of making construction by
getting a map sanctioned by ADA does not
arise at all. Any act of ADA would not
create any legal right in favour of
petitioners which otherwise they also do
not possess.

46....... A trespasser is not entitled to
get sanction and raise constructions on a
land over which it has no right,so as to
create right over land. The entire things are
illegal and void ab initio.

56. 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.

57. 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,
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

58. We find from the Statute that
compounding a building is permissible in
the Statute under Uttar Pradesh Urban
Planning
&
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
realizing some amount.

42. In view of the above discussion, I
find that once the Commissioner, in his
order
dated
02.05.1994,
held
the
constructions raised by the respondent no.5
as unauthorized, illegal and contrary to
law and the said order, though challenged
by means of writ petition, but the challenge
failed in terms of dismissal of the petition
on 16.12.2005 and then order dated
30.01.2006 passed by the Commisisoner on
review was further set aside by this Court
on 14.05.2012 and was not interferred with
by the Supreme Court while dismissing
Special Leave Petition on 09.11.2012, there
is nothing on record to show or establish
that the constructions raised by the
respondent no.5 were lawful. The effect of
these orders cannot be ignored whether
the order impugned is an order on merit
or simply an order of remand.

43. Insofar as, the contention of State
as well as Development Authority to the
effect that the compounding has not been
ordered but it will be considered and that
the constructions raised on the disputed
land would not be compounded, this Court
finds that the said stand supporting the
order impugned is liable to be discarded.
There are various reasons behind forming
this opinion. First of all, as explained
hereinabove, the Bye-laws of 2009 speak of
compounding
of
"offence"
and
not
"constructions". Secondly, if the same are
stretched to compounding of constructions,
though I do not find any justification for
this, it would be a case where, according to
the Development Authority, the matter
would be examined in reference to the
constructions which were raised on a
disputed land.

44. Shri Nisheeth Yadav, learned
counsel for the Development Authority has
vehemently argued that there is no title
dispute in between the petitioner and
respondent no.5 and, therefore, the land
over which, the constructions have been
raised is not "तववातदि" (disputed). The
insistence of learrned counsel for the
respondent-Authority is that, insofar as, the
title dispute is concerned, the same should
be left to be decided by civil/revenue court
and such adjudication would have no
bearing
upon
the
merits/demerits
of
compounding of the constructions.

45. I am not in a position to accept the
said argument.