# Kiran Pal & Ors v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-30
- **Case number:** Writ-C No. 20156 of 2022
- **Bench:** Manoj Kumar Gupta, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kiran-pal-ors-v-state-of-u-p-ors-47697
- **Pages:** 4

## Headnote

A. UP Industrial Area Development Act,
1976
-
Sections
2(d),
9
&
10
-
Unauthorized construction over the land
notified under the Act - Demolition order
passed
-
Validity
challenged
-
No
permission u/s 9 was taken from the
Authority - No evidence to proof the
construction being old was produced - No
evidence of allotment was given - Effect -
Held, the subject land being flood plain
zone of river Yamuna, the constructions
raised by the petitioners are illegal and
unauthorized
and
are
liable
to
be
demolished - However, the High Court
clarified that the petitioners are free to
get their rights adjudicated in appropriate
proceedings. (Para 9, 12 and 13)
Writ petition dismissed. (E-1)

## Text

10 All. Kiran Pal & Ors. Vs. State of U.P. & Ors.
147
primarily should be left to the competent
court of civil jurisdiction.

28. The very issuance of advisory by the
Government of UP dated 3.8.2022 vide No.
1291/EK-2022/9-RA-9
pursuant
to
the
Government order dated 16.10.2015 is evident
of the fact that even the Government of UP is
not oblivious to the exercise of excessive
administrative powers by the execution in civil
dispute relating to immovable properties
between private individuals. It is high time that
the said advisory acts like yet another
reminder to all the executive authorities to
desist from taking any action in a dispute
relating to immovable properties of private
persons and especially when the matter is
pending in a civil court as in the present case.

29. Having noted the effort of the
Government of UP in issuing the aforesaid
advisory, this Court further expects that the
Government
should
also
prescribe
consequential effect against the erring officers
and provide for remedial steps by framing
high level committee of senior officers at the
Government level, which should include the
Revenue
Secretary
so
that
not
only
accountability can be fixed but a redressal
forum be available to the victims and this
Court is not flooded with similar kinds of
litigations in future.

30. For all above reasons, we are
inclined to allow this writ petition. This court
without expressing any view on the merits of
the dispute pending before the competent
courts and in the peculiar facts and
circumstances of the present case directs the
District Magistrate, Ghazipur and the SDM,
Tehsil - Kasimabad, District - Ghazipur to
ensure that the parties are restored possession
as was existed prior to 11.6.2022 in order to
bring them to their original position. Needless
to say that such arrangement shall be subject to
the out come of the civil appeal and other
litigations pending between the petitioner and
respondent no. 7. We clarify that we have not
expressed anything on the merit of the
contention of the parties, which may be
permissible to the parties as per law and as
such we did not find any reason to issue notice
to respondent no. 7 before passing this order.

31. Further, before parting with this
judgment, this Court issues strict warning to
the respondent no. 2 the officer posted as the
District Magistrate, Ghazipur for trying to
mislead this Court, to refrain from repeating
any such mistake in future. We call upon the
departmental head to issue a Warning to the
District Magistrate, Ghazipur to be kept in his
service record. A Warning be also issued to all
such erring officials, to be circulated widely,
so that they shall desist from repeating such
acts in future and that any such repetitive act
must entail disciplinary action against them as
per the Rules.

32. With the aforesaid observations and
directions, the writ petition stands disposed of.

33. No order as to cost.
----------
(2022) 10 ILRA 147
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Writ-C No. 20156 of 2022

Kiran Pal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
148 INDIAN LAW REPORTS ALLAHABAD SERIES
Pushkar Mehrotra, Ashish Kumar Singh

Counsel for the Respondents:
C.S.C., Anjali Upadhya, Kaushalendra Nath
Singh

A. UP Industrial Area Development Act,
1976
-
Sections
2(d),
9
&
10
-
Unauthorized construction over the land
notified under the Act - Demolition order
passed
-
Validity
challenged
-
No
permission u/s 9 was taken from the
Authority - No evidence to proof the
construction being old was produced - No
evidence of allotment was given - Effect -
Held, the subject land being flood plain
zone of river Yamuna, the constructions
raised by the petitioners are illegal and
unauthorized
and
are
liable
to
be
demolished - However, the High Court
clarified that the petitioners are free to
get their rights adjudicated in appropriate
proceedings. (Para 9, 12 and 13)
Writ petition dismissed. (E-1)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Ram Manohar Narayan Mishra, J.)

1. Heard Sri Ashish Kumar Singh for
the petitioners, learned standing counsel for
respondents no.1 & 4 and Mrs. Anjali
Upadhya for respondents 2 & 3.

2. The petitioners have prayed for
quashing of an order dated 13.5.2022
passed by respondent no.1 i.e. Chief
Executive Officer, NOIDA, Gautam Budh
Nagar. By the said order, the representation
filed by the petitioners in response to a
notice
dated
20.12.2021
issued
by
respondent
no.2
(NOIDA)
has
been
decided in compliance of order dated
28.1.2022 passed by this Court in Writ-C
No.692 of 2022. The objection of the
petitioners has been rejected and it has been
held that the constructions raised by the
petitioners over Khasra No.734 are illegal
and unauthorised and are therefore liable to
be demolished.

3. In brief, the facts necessary for
disposal of the instant petition are that a
demolition notice was issued to the
petitioners on 20.12.2021 by respondents
no.3 and 4 mentioning that Khasra No.734
is land notified as 'industrial development
area' under Section 2 (d) of the U.P.
Industrial Area Development Act, 1976. It
is flood plain zone of river Yamuna and
whereupon the petitioners were found
raising illegal constructions. The notice
makes reference to Section 10 of the Act
and directs the petitioners to forthwith stop
further development and remove the
constructions made so far, failing which,
the same will be demolished by the
Authority and the expenses incurred in this
behalf shall be recovered from the
petitioners as arrears of land revenue. The
notice further mentions that in case the
petitioners have any sanctioned plan or rely
on any other document, it shall be open to
them to file their reply within fifteen days,
failing which, it will be assumed that the
petitioners have nothing to say in the
matter.

4. The petitioners being aggrieved by
the said notice approached this Court by
way of Writ-C No.692 of 2022 contending
that the constructions are old and were
made prior to constitution of the NOIDA
Authority in the year 1976. It was also the
case of the petitioners that they had already
replied to the demolition notice, but
without deciding the same, the NOIDA
Authority was threatening to demolish the
constructions.
The
writ
petition
was
disposed of by an order dated 28.1.2022
10 All. Kiran Pal & Ors. Vs. State of U.P. & Ors.
149
with direction to respondent no.2 to pass a
reasoned order, taking into consideration
the objections filed by the petitioners. It is
in compliance of the said direction that the
impugned order has now been passed.

5. The impugned order records as
follows:-

(a) Plot No.734 is notified as
'industrial development area' and is flood
plain zone of river Yamuna.

(b) The notification of the village
in which Khasra No.734 lies as industrial
development area under Section 2 (d) of the
Act,
was
issued
on
11.07.1989.
No
development work in any area notified under
Section 2 (d) can be undertaken without the
permission of NOIDA Authority.

(c) The State Government had
issued a Government Order dated 16.3.2010
directing that all unauthorized constructions
in flood plain zone be removed forthwith.

(d) Tehsildar, Dadari in his report
dated 20.4.2022 has mentioned that Khasra
No.734 is recorded as banjar in khatauni of
1427 - 1432 fasali. There is no evidence of
the said plot being allotted for agricultural
purposes.

(e) Since Khasra No.734 is notified
as 'industrial development area' and is flood
plain zone, therefore, the constructions raised
by the petitioners without approval of
NOIDA Authority are in clear violation of
Section 2 (d) read with Section 10 of the Act.

6. On 21.07.2022, the following order
was passed:-

"Supplementary
affidavit
filed
today is taken on record.

It
is
submitted
by
Sri
Kaushalendra Nath Singh, learned counsel
appearing on behalf of Noida Authority
that
except
for
a
bald
plea
that
constructions were old and raised prior to
the area being declared as notified area no
evidence in this behalf was led by the
petitioners. This was despite the fact that
notice specifically mentioned that the
petitioners
were
found
raising
new
constructions
without
obtaining
any
permission from the authority.

Sri Ashish Kumar Singh, learned
counsel for the petitioners seeks time to
ascertain whether any evidence was filed
by the petitioners before the respondent
authority to show that the constructions
were old constructions, raised before the
area was declared as notified area under the
provisions
of
U.P.
Industrial
Area
Development Act, 1976.

List as fresh on 25.07.2022."

7. In compliance of the above order, a
supplementary affidavit has been filed in
which it is admitted that the petitioners are
not having any electricity connection over
the premises in question. It is stated that the
property is in shape of a Gher and is being
used as such. It is also admitted that the
property
is
situated
near
the
river
embankment and for this reason, no
electricity connection has been provided.
No evidence has been filed alongwith the
supplementary affidavit to show the extent
of constructions or that they were old
constructions.

8. It is not disputed before us that after
an area has been notified as industrial
development area, the occupier thereof is not
entitled to raise constructions over it without
obtaining permission from the Authority. This
is in view of the mandate of Section 9 which
stipulates that- no person shall erect or occupy
any building in any industrial development
area in contravention of any building
regulations made under sub-section (2).
Regulation 4 of the New Okhala Industrial
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Development Area Building Regulation, 2010
provides that no person shall erect any
building or a boundary wall or fencing without
obtaining a prior permission thereof from the
Chief Executive Officer or an officer
authorised by the Chief Executive Officer for
this purpose. Regulation 5 stipulates that any
person who intends to erect a building within
the industrial development area shall give
application in the Form given at Appendix-1
and subject to compliance of the provisions
laid down under the Regulations, permission
shall be granted/refused. Regulation 20.3
stipulates that in case of unauthorized
development, the Chief Executive Officer or
an officer authorized by the Chief Executive
Officer shall take suitable action which may
include demolition of unauthorized work,
sealing of premises, prosecution and criminal
proceedings against the offenders in pursuance
of relevant Acts in force.

9. Before this Court, the petitioners have
only raised plea of constructions being old, but
no such evidence was filed before the
Authority nor even before this Court.

10. Sri Ashish Kumar Singh, learned
counsel for the petitioners fairly admits that
there is no evidence with the petitioners to
show that the constructions were raised before
the area was notified as industrial development
area so as to take the same outside the clutches
of the Building Regulations framed by the
Authority. He, however, submitted that the
observation in the impugned order that Khasra
No.734 is recorded as banjar and there is no
evidence of settlement of the said land with
any person, is an incorrect observation.

11. Mrs. Anjali Upadhya, learned
counsel appearing on behalf of NOIDA
Authority submitted that the observation is
based on a report of Tehsildar, Dadari. It is a
mere passing observation and the dispute
relating to right, title or interest in the subject
land was not decided by the Authority.

12. We find considerable force in her
submission. The observation made in the
impugned order in respect of subject land
being recorded as banjar land and there being
no evidence of allotment thereof in favour of
any person is not an adjudication made by the
Authority qua the rights of the petitioners in
the subject land. We therefore clarify that the
petitioners are free to get their rights
adjudicated in this behalf in appropriate
proceedings
and
wherein
the
above
observation will have no adverse effect.

13. However, as noted above, since the
petitioners have failed to prove that the
constructions over the subject land were old
or were raised prior to the area being
declared as Industrial Development Area
and also in view of the admitted fact that the
subject land is flood plain zone of river
Yamuna, we find no illegality in the
impugned order in so far as it holds that the
constructions raised by the petitioners are
illegal and unauthorized and are liable to be
demolished.

14. The petition lacks merit and is
dismissed subject to the above clarification.
----------
(2022) 10 ILRA 150
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.10.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 22593 of 2021

C/M, Sohan Lal Balika Inter College
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents