# Lucknow Omaxe City Residence & Allottees Association & Ors v. State of U.P

- **Citation:** (2021) 6 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-02
- **Case number:** Misc. Bench No. 9591 of 2018
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lucknow-omaxe-city-residence-allottees-association-ors-v-state-of-u-p-47006
- **Pages:** 10

## Headnote

(a) Land Law - Any allottee, assignee or
transferee would be having the same
rights and obligations as the Developer
and bound by the terms and conditions, as
applicable to the Developer. (Para 19)

The exchange of land was permitted only after
the Developer agreed to provide approach road
to the land offered in exchange of Gram Samaj
land. The Developer has agreed to provide 18
meters wide approach road running parallel to
the land given to the Nagar Nigam in exchange
of the Gram Samaj land. If the Developer has
made a false promise to its allottees or the
petitioner, they may seek appropriate remedy
against
the
Developer,
but
they
cannot
encroach upon the rights of the Nagar Nigam of
using 18 meters wide approach road, leading to
24 meters wide road whcih connects to Amar
Shaheed Path. (Para 19)

Writ Petition Rejected. (E-8)

List of Cases cited:-

## Text

160 INDIAN LAW REPORTS ALLAHABAD SERIES
his knowledge, the Tehsildar should make
such enquiry as is necessary, and if he is
satisfied that such succession or transfer
appears to have taken place, he shall direct
the Annual Registers to be amended
accordingly. Section 40 clearly provides that
all disputes regarding entries in the Annual
Register shall be decided on the basis of
possession.

28. This Court observed in Rudra Mani
Shukla (supra) that it was incumbent upon the
Tehsildar to make necessary enquiry about
the existing entries in the relevant papers and
also to make an enquiry as to who was in
possession,
and
then
make
an order
accordingly. In Amarnath Arora versus
Board of Revenue U.P. Lucknow, 2019 LCD
775; a Coordinate Bench of this court placing
reliance upon Rudra Mani Shukla (supra)
observed in paragraph 27 and 31 Thus:-

"27. what persuades this Court to
entertain this writ petition, though the same
has been preferred against orders passed in a
mutation case, is the fact that in terms of the
provisions contained in sections 34 and 35 of
the U.P. Revenue Code 2006, the finding of
''obtaining possession'' is necessarily to be
returned by the Court concerned, however,
ignoring the said provision since the
impugned orders have been passed, without
recording a finding in respect of ''obtaining
possession', I am inclined to entertain this
writ petition in the peculiar facts and
circumstances of the case and accordingly
reject the objection raised by the learned
Senior Advocate appearing on behalf of the
Respondent no.4 regarding maintainability of
the writ petition.

"31. Mutation proceedings in respect of
agricultural
land
which
are
presently
governed by the provisions of sections 34 and
35 of the UP Revenue Code 2006 were
earlier governed by sections 34 and 35 of the
U.P. Land Revenue Act. The provisions of
section 34 of the U.P. Revenue Code 2006
and Section 35 of the UP Land Revenue Act
are in Pari materia. In both these provisions,
the emphasis, in my considered opinion, is on
obtaining possession by transfer..."

29. In the orders impugned, there is no
finding recorded either by the Appellate
Court or by the Revisional Court as to who
was in actual possession of the property in
question and therefore liable to pay revenue
to the Government. The orders impugned
have placed reliance on the issue of whether
Hadishul Nisha had remarried or not. The
evidence produced by either side being
inconclusive, still a finding was recorded that
the petitioner had remarried and therefore
was disentitled to the property of her late
husband as per Sections 171 and 172 of the
U.P.Z.A. & L.R. Act.

30. The orders impugned being clearly
in excess of jurisdiction conferred on such
authorities, and also against the statutory
provisions of the U.P. Land Revenue Act, are
set aside.

31. The writ petition is allowed. All
consequences to follow.
----------
(2021)06ILR A160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.07.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE DINESH KUMAR SINGH, J.

Misc. Bench No. 9591 of 2018

Lucknow
Omaxe
City
Residence
&
Allottees Association & Ors. ...Petitioners
Versus
State of U.P. ...Respondent
6 All. Lucknow Omaxe City Residence & Allottees Association & Ors. Vs. State of U.P.
161
Counsel for the Petitioners:
Mudit Agarwal, Nidhi Agarwal

Counsel for the Respondents:
C.S.C., Anilesh Tiwari, Ashish Chaturvedi, Dr.
V.K. Singh, Kuldeep Pati Tripathi, Namit
Sharma, Ratnesh Chandra, Shailendra Singh
Chauhan

(a) Land Law - Any allottee, assignee or
transferee would be having the same
rights and obligations as the Developer
and bound by the terms and conditions, as
applicable to the Developer. (Para 19)

The exchange of land was permitted only after
the Developer agreed to provide approach road
to the land offered in exchange of Gram Samaj
land. The Developer has agreed to provide 18
meters wide approach road running parallel to
the land given to the Nagar Nigam in exchange
of the Gram Samaj land. If the Developer has
made a false promise to its allottees or the
petitioner, they may seek appropriate remedy
against
the
Developer,
but
they
cannot
encroach upon the rights of the Nagar Nigam of
using 18 meters wide approach road, leading to
24 meters wide road whcih connects to Amar
Shaheed Path. (Para 19)

Writ Petition Rejected. (E-8)

List of Cases cited:-

1. Satya Pal Anand Vs St. of M.P. (2016) 10 SCC
767

2. R.K. Mittal & ors. Vs St. of U.P. & ors. (2012)
2 SCC 232

3. Machavarapu Srinivasa Rao & anr. Vs
Vijavawada, Guntue, Tenali, Mangalagiri Urban
Development Authority & ors. (2011) 12 SCC
154

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present writ petition has been
filed by Lucknow Omaxe City Residents &
Allottees Association, a Society registered
under the Societies Registration Act, 1860
(hereinafter referred to as ''The Act, 1860')
and its two office bearers, who are also the
residents of Housing Complex developed
by M/s Omaxe Limited, respondent no. 6
named as 'Omaxe City' and its subsidiary
companies
(collectively
called
as
'Developer'). The housing complex has
been developed by the M/s Omaxe in an
area of around 140 acres at Village
Aurangabad
Khalsa,
Raebareli
Road,
Lucknow, Near Amar Shaheed Path.

2. The State Government took a
policy decision vide Government Order
dated 25th January, 1996 in order to
mitigate difficulties faced in integrated
development of an area/project due to
location of parcels of land belonging to
Gram Samaj etc. around the area proposed
to be developed. It was felt that if such
parcels of land were consolidated, then the
utility of such land and its value would get
substantially increased and, there would not
be any impediment to sanction the layout
and development plan for such an area. In
view of the aforesaid, it was directed that if
in any layout plan of any area, for
development, the parcels of land of Gram
Samaj are situated within the layout plan,
then the sanctioning agency of the layout
plan would be empowered to consolidate
such parcels of land of Gram Samaj and,
secure an undertaking from Developer to
leave the consolidated land which should
have approach road. It was also provided
that if providing approach road was not
feasible at all, then the value of such
parcels of land belonging to Gram Samaj
be charged from the Developer. The outlay
plan would only be passed, if the
Developer would agree to such a condition.

3. On applications filed under Section
161 of the U.P. Z.A. and L.R. Act, 1950 by
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the Developer for exchange of Gram Samaj
land, which was in different parcels, total
area 4.5422 hectares, these lands were
ordered to be exchanged with the same
amount of land which was offered by the
Developer
vide
order
dated
14the
December, 2006 passed by the SubDivisional Magistrate, Sadar, Lucknow in
Case No.03/12/06-07 and two other cases.
It was specifically recorded in the said
order(s) that the land of Gram Samaj was
not the land of public utility and, for the
land offered in exchange of the land of
Gram Samaj, an approach road was
proposed, which would be available for the
exchanged land.

4. The land of Gram Samaj
subsequently vested in Lucknow Nagar
Nigam, Lucknow after issuance of the
relevant
notification
by
the
State
Government under Section 3 of the U. P.
Municipal
Corporation
Act,
1959
(hereinafter referred to as ''The Act, 1959')
as is provided under Section 126 of the Act,
1959. Initially, in the layout plan submitted
by the Developer, they proposed 12 meters
wide approach road. The Nagar Nigam
granted 'no objection certificate' for the
housing project proposed to be developed
by the Developer on 24th November, 2002.
In the said 'no objection certificate' it was
specifically provided that instead of 12
meters wide approach road, 18 meters wide
approach road would be constructed. It was
further provided that a case regarding
exchange of Gram Samaj land to the extent
of 24566.62 square meter was pending
before
the
Municipal
Corporation,
Lucknow and, therefore, till the final
decision was taken on the aforesaid subject,
the Developer would be allowed to carry
out the development work in the proposed
layout plan. The affidavits dated 13th
April, 2006 on behalf of the Developer
were submitted, stating therein that the
Developer would provide approach road to
the land given in exchange to the Lucknow
Nagar Nigam in lieu of the land of Gram
Samaj. In pursuance of the aforesaid 'no
objection certificate' submitted by the
Developer, a revised layout plan was
submitted by the Developer before the
Lucknow
Development
Authority,
providing therein 18 meters approach road
to the land offered to the Municipal
Corporation in exchange of the Gram
Samaj land.

5. The Lucknow Development Authority
approved the layout plan for the housing project
of 'Omaxe City' vide Permit No.208280 with
certain conditions. One of the conditions i.e.
condition no. 6 provided that the Developer
should abide by all the conditions mentioned in
the 'no objection certificate' given by the
Lucknow Nagar Nigam.

6. A perusal of sanctioned layout plan of
the housing project, 'Omaxe City' would reveal
that at the end of 24 meters wide road
connecting to Amar Shaheed Path, 18 meters
wide road was provided towards the eastern
side running parallel to the side of primary
school and thereafter inter college towards the
east of the primary school. This road runs
parallel to the land given out by the Developer
to the Lucknow Nagar Nigam as a measure of
exchange value of the land belonging to
erstwhile Gram Samaj, Aurangabad Khalsa.
This 18 meters wide road provides approach
road to the educational institutions, hospital and
commercial establishments as well. The
Lucknow
Nagar
Nigam
has
proposed
construction of housing project on the area
given by the Developer in exchange of the
Gram Samaj land.

7. It appears that the Developer
constructed the boundary wall on the
6 All. Lucknow Omaxe City Residence & Allottees Association & Ors. Vs. State of U.P.
163
approach road, blocking access to the
chunk of land, now in possession of the
Lucknow Nagar Nigam, which was given
in exchange of the Gram Samaj land by the
Developer. The Lucknow Nagar Nigam has
planned a colony for lower income group,
middle income group and high income
group on the said land. The development
plan under Section 14 of the U.P. Urban
Planning and Development Act, 1973
(hereinafter referred to as ''The Act, 1973'),
has been sanctioned on 21st March, 2017.
A building plan has also been sanctioned
by the Lucknow Development Authority on
the same day i.e. 21st March, 2017. As per
the sanctioned building plan for the land of
the Lucknow Nagar Nigam, a gate,
measuring 22.460 meters wide from 18
meters wide approach road on the land of
the Lucknow Nagar Nigam is provided.

8. As per the petitioners, the
Developer
aggressively
marketed
the
project 'Omaxe City' in the year 2005-2006
and issued several advertisements, invited
booking from the prospective home buyers,
offering a closed township with a boundary
wall running around it with only one main
entrance. The home buyers, who bought the
flats, (around 750) got attracted to the
facilities offered by the Developer, besides
safety and of a closed township. The
Developer
offered
plots,
villas
and
residential houses in the said township and
the members of the petitioner no.1 bought
the plots, villas and houses. The Lucknow
Nagar Nigam started developing its project
for construction of LIG, MIG and HIG flats
(500) on the land which it was given by
Developer in exchange of the Gram Samaj
land. Finding 18 meters wide approach
road, leading to the land of the Lucknow
Nagar Nigam having been closed by
constructing a boundary wall, on 18th
March, 2017, a portion of 25 meters wide
boundary wall was demolished by the
Lucknow Nagar Nigam. However, the
boundary wall, which was demolished by
the Lucknow Nagar Nigam, was reconstructed by petitioner no.1 on the
intervention of the authorities and the
police.

9. Aggrieved by the demolition of the
boundary wall by the Lucknow Nagar
Nigam, the petitioners have filed the
present writ petition with the following
reliefs:-

"(i) Issue a writ, order or direction in
the nature of mandamus directing the
respondent No. 2 not to break the boundary
wall of the Omaxe City township and create
Entry and/or exit for the residential project
being developed on its land in village -
Aurangabad Khalsa between the Omaxe
City Township and SGPGI, through the
Omaxe City township.

(ii) Such other/further relief as may be
deemed to be just and appropriate in the
facts and circumstances of the case may
also be granted in favour of the petitioners
as against the respondents.

(iii)
Costs......
against
the
respondents."

10. Heard Mr. J.N. Mathur, learned
Senior Advocate assisted by Mr. Mudit
Agarwal,
learned
counsel
for
the
petitioners, Mr. L.P. Mishra assisted by Mr.
Namit Sharma, learned counsel on behalf
of the opposite party no.2/Nagar Nigam,
Mr. Ratnesh Chandra, learned counsel for
opposite
party
no.
3/Lucknow
Development Authority, learned standing
counsel for opposite parties no. 1, 4 and 5
and Mr. N.K. Seth, learned Senior
Advocate
assisted
by
Mr.
Ashish
Chaturvedi,
learned
counsel
for
the
opposite party no.6.
164 INDIAN LAW REPORTS ALLAHABAD SERIES

Judgment reserved.

11. Shri J.N. Mathur, learned Senior
Counsel, appearing for the petitioners has
submitted that there is already an approach
road, leading to the land of the Lucknow
Nagar Nigam. This approach connects the
road below Shaheed Path. It is submitted
that the 18 meters wide approach road from
24 meters wide road was made only for the
residents of the petitioners-society, which
is a gated community. It is not a
thoroughfare. It is further submitted that if
the 18 meters wide road is allowed to be
used by the Lucknow Nagar Nigam or the
residents of the proposed project of the
Lucknow Nagar Nigam, privacy of the
petitioner no. 1's members shall be affected
and, it would be against the building and
layout plans sanctioned for construction of
the housing project, 'Omaxe City'. It is
further submitted that at present 30 feet
wide public road, which directly connects
to the land of the Lucknow Nagar Nigam,
is being used for transporting construction
material to the side of the Lucknow Nagar
Nigam. It is further submitted that the
Government Order dated 25th January,
1996 provides only a safeguard for the land
offered in exchange of the Gram Samaj
land as it should not be a land locked. It
never obligated the builder or any person,
exchanging the land to provide a road
despite there being a pre-existing public
road leading to the land given in exchange
of Gram Samaj land. In respect of
undertaking given by the Developer in the
proceedings under Section 161 of the Act,
1950, it has been submitted that the said
undertaking was given without disclosing
the same to the members of the petitioner
no.1 and such an undertaking would be in
violation of the contract entered into
between the members of the petitioner no 1
and the Developer and, it amounts to an
illegal and void undertaking. It is further
submitted that providing access to the
residents in the proposed project of the
Lucknow Nagar Nigam through 18 meters
wide road, approaching to the "Omaxe
City" would destroy the concept of a gated
township and the roads of the colony would
become a thoroughfare. It is further
submitted that an agreement or undertaking
of the Developer to the Lucknow Nagar
Nigam, which affects the vested right of the
members of the petitioner no. 1, is not
binding on them and, it would be void as
the petitioner no. 1 and its members were
not party to such undertaking or any
agreement which was entered into between
the Lucknow Nagar Nigam and the
Developer. It is further submitted that since
the petitioners were promised a gated
colony/housing
project/township
and
providing access to the Lucknow Nagar
Nigam from 18 meters wide road to the
proposed project of the Lucknow Nagar
Nigam would violate the fundamental
promise made by the Developer of
exclusive a gated township.

12. On the other hand, Mr. L.P.
Mishra, learned counsel for the Lucknow
Nagar Nigam, has submitted that the
conditions of exchange of the land
specifically provided that the Developer
would ensure an approach road to the land
offered in exchange. The land of the Gram
Samaj was exchanged under this policy
and, therefore, neither the Developer nor
the petitioner no. 1 or its members, who are
assignee/transferee/successor
of
the
Developer can plead anything contrary to
the policy decision dated 25th January,
1996. It is further submitted that the
petitioners are bound by the terms and
conditions under which the housing project
of the 'Omaxe City' was sanctioned and the
land
was
given
in
exchange.
The
6 All. Lucknow Omaxe City Residence & Allottees Association & Ors. Vs. State of U.P.
165
transferee/assignee/successor
steps
into
shoes of the predecessor and is entitled and
bound by the rights and obligations of the
predecessor-in-interest. When 18 meters
wide approach road was agreed by the
Developer and, it was a condition for the
exchange as well as one of the conditions
of 'no objection certificate' issued by the
Lucknow Nagar Nigam, then the Developer
or its assignee/transferee/successor cannot
wriggle out of this obligation. The
Developer as well as its transferee, assignee
or successor is under obligation to maintain
24 meters wide approach road from the
Shaheed Path and thereafter 18 meters
approach road, leading to the land of the
Lucknow Nagar Nigam, Lucknow, a
condition of exchange, as mentioned in the
sanctioned plan, free from encroachment so
that the Lucknow Nagar Nigam has access
to its land without any obstacle. It is further
submitted that under Section 14 of the Act,
1973, the terms and conditions of the
sanctioned layout plan are binding on the
Developer
as
well
as
its
assignee/transferee/successor,
which
specifically provided 18 meters wide
approach road, running parallel to the land
given by the Lucknow Nagar Nigam in
exchange and, it was their duty to maintain
24 meters wide road and thereafter 18
meters wide approach road till such
housing project of the Developer is handed
over to the Lucknow Nagar Nigam. After
handing over the said road, it would be the
responsibility of the Lucknow Nagar
Nigam to maintain the same. It is also
submitted that 18 meters wide approach
road from 24 meters wide approach road
leads to the public utility facilities such as
the educational institution, hospital, market
and
other
commercial
establishments
earmarked as such in the sanctioned plan
and, therefore, the submission made on
behalf of the petitioners that the 18 meters
wide approach road is exclusively meant
for use of residents of the housing project
of the 'Omaxe City' gets falsified. The
learned counsel for the Lucknow Nagar
Nigam, has submitted that the Nagar
Nigam will construct such a gate where
boundary wall on 18 meters wide approach
road is existing, blocking access to its land,
so that the area of Omaxe City and the
residential complex constructed by the
Lucknow Nagar Nigam are separated. The
petitioners or the Developer should not
have any objection for constructing the gate
as proposed by the Lucknow Nagar Nigam,
which is also shown in the sanctioned
building plan of the Lucknow Nagar
Nigam.

13. Mr. N. K. Seth, learned Senior
Counsel, appearing for the Developer,
besides raising a preliminary objection
regarding maintainability of the writ
petition against a private person i.e.
respondent no. 6, has submitted that
providing 18 meters wide approach road to
the Lucknow Nagar Nigam from 24 meters
wide approach road was a pre-condition of
exchange of land of Gram Samaj and the
Developer was bound to provide 18 meters
wide approach road, leading to the land of
the Lucknow Nagar Nigam. The learned
counsel has further submitted that if the
Developer did not agree with providing 18
meters wide approach road to the land of
the Lucknow Nagar Nigam, the exchange
was not possible. The learned counsel has
further submitted that the boundary wall
was subsequently constructed so that the
encroachment could be avoided. The
learned counsel has further submitted that
the residents or the petitioners are not
correct to say that the 18 meters wide
approach road was exclusively meant for
their use. The learned counsel has further
submitted that the Developer is bound by
166 INDIAN LAW REPORTS ALLAHABAD SERIES
the sanctioned building plan, the condition
of 'no objection certificate' and the
condition of exchange. The learned counsel
has further submitted that the petitioners
cannot claim a better right or title than of
the Developer. The learned counsel has
further submitted that in the layout plan, in
respect of the housing complex 'Omaxe
City', condition no. 6 specifically provided
that the Developer would be bound by the
conditions as mentioned in the 'no
objection
certificate'
issued
by
the
Municipal Corporation, Lucknow. The
allottees/petitioners being fully aware of
the conditions of the sanctioned plan had
entered into the agreement after due
verification of all facts. The allotment
letter, sale-deed etc. specifically mentioned
that the allottees had confirmed that they
had seen and understood the tentative
plans, designs and specifications of the
project and, they agreed to the same. The
Developer has developed and completed
the housing project in accordance with the
sanctioned plans and completion certificate
dated 21st April, 2010 was issued in
respect
of
Phase-I
and
a
separate
completion certificate dated 24th April,
2010 was issued in respect of Phase-II by
the Lucknow Development Authority. The
learned counsel has further submitted that
the petitioners have filed Writ Petition
No.1366 (M/B) of 2015 before this Court,
challenging the issuance of completion
certificates, as mentioned above, and for
issuance of a direction to the Developer to
complete development work of the housing
project as per the bylaws and the
sanctioned plan. The learned counsel has,
therefore,
submitted
that
once
the
petitioners have come before this Court,
asking a direction for completion of the
housing project in accordance with the
sanctioned plan, they cannot, in the present
petition, be allowed to say that they are not
bound by the sanctioned plan or they were
not aware of the sanctioned plan. The
learned counsel has further submitted that
since no effective relief has been sought
against the respondent no. 6/Developer, the
writ petition against the respondent no. 6 is
liable to be dismissed. The subject matter
of the writ petition pertains to the
contractual obligations of the parties,
therefore, the writ petition is liable to be
dismissed.

14.

We
have
considered
the
submissions advanced by the learned
counsel appearing for the parties.

15. Under the policy decision dated
25th January, 1996 under which exchange
of the land was permitted, it was provided
that order of exchange would be passed
only after the Developer agreed to provide
approach road to the land offered in
exchange of Gram Samaj land. The
Developer had agreed to provide 18 meters
wide approach road from the 24 meters
road running parallel to the land given to
the Nagar Nigam in exchange of the Gram
Samaj land. The sanctioned layout plan of
the Developer regarding the housing
project, namely, 'Omaxe City' also would
indicate that 18 meters wide approach road
from 24 meters road, running parallel to the
land of the Lucknow Nagar Nigam was
provided. In the sanctioned plan of the
Lucknow Nagar Nigam for its housing
project on the exchanged land, 18 meters
wide approach road is proposed. The
counsel for the Developer has specifically
stated that they had agreed to provide 18
meters wide approach road leading to the
land of the Lucknow Nagar Nigam and, it
was a condition precedent for exchange,
otherwise exchange was not possible. With
respect to the boundary wall constructed
over the 18 meters wide approach road,
6 All. Lucknow Omaxe City Residence & Allottees Association & Ors. Vs. State of U.P.
167
blocking access to the land of Lucknow
Nagar Nigam, it has been submitted that
the boundary wall was reconstructed only
for
a
purpose
to
protect
it
from
encroachment, but it was never meant that
the Lucknow Nagar Nigam would not be
provided access through 18 meters wide
approach road.

16. It is well settled that any allottee,
assignee or transferee would be having the
same
rights
and
obligations
as
the
Developer and bound by the terms and
conditions, as applicable to the Developer.
The Supreme Court in the case of Satya
Pal Anand Vs. State of Madhya Pradesh,
(2016) 10 SCC 767 in paragraph-31 has
held as under:-

"31. The aforementioned reported
decision has noted the subtle distinction
between ultra vires act of the statutory
authority and a case of a simple infraction
of the procedural Rule. The question,
whether the Society was competent to
unilaterally cancel the allotment of a plot
given to its member and to cancel the
membership of such member due to default
committed by the member, is within the
purview of the business of the Society. Any
cause of action in that regard must be
adjudicated by the procedure prescribed in
that behalf. It is not open to presume that
the Society had no authority in law to take
a decision in that behalf. The right of the
appellant qua the plot of land would
obviously be subject to the final outcome of
such action. The appellant being the legal
representative of the original allottee,
cannot claim any right higher than that of
his predecessor qua the Housing Society,
which is the final authority to decide on the
issue of continuation of membership of its
member. The right of the member to remain
in occupation of the plot allotted by the
Society would be entirely dependent on that
decision."

17. There is sanctity to the sanctioned
building plan. Neither the Developer nor its
allottees, assignees or transferees are
entitled to deviate from the sanctioned
building plan. The Supreme Court in the
case of R.K. Mittal and others Vs. State of
U.P. and others, (2012) 2 SCC 232 has
held in paragraphs 56, 58, 68 and 72 as
under:-

"56. The running of a bank or a
commercial business by a company in the
residential
sector
is
certainly
not
permissible. In fact, it is in patent violation
of the Master Plan, Regulations and the
provisions of the Act. We see no power
vested in the Development Authority to
permit such user and ignore the misuse for
such a long period.

58. The conduct of the authorities,
prior to institution of the writ petitions in
the High Court, showed uncertainty and
wavering of mind in its decision-making
processes. In fact, it was expected of the
Development Authority to take a firm and
final decision and put at rest the
unnecessary controversy raised by its
proposal. However, once the writ petitions
were filed, thereafter, the stand of the
Development Authority has been consistent
and unambiguous. In the counter-affidavit
filed in this Court, it has been stated that
even in case of grant of permission to the
abovestated two banks, no extension was
granted and in fact show-cause notices
have been issued to all the banks in the
residential sector to wind up their activities
and move out of the residential sector. It is
the definite case of the Development
Authority that banking activity is a
commercial activity and therefore, cannot
be carried on in the residential sector,
168 INDIAN LAW REPORTS ALLAHABAD SERIES
more particularly on the plots in question.
In regard to Sector 19, a specific averment
has been made in the affidavit of the
Development Authority that the land use is
residential alone and is neither commercial
nor mixed. As per the Master Plan, its
primary use is "residential" where plots are
planned for residential purpose alone. It is,
therefore, abundantly clear from the
pleadings on record that commercial
activity of any kind in the residential sector
is impermissible. These pleadings are in
conformity with the statutory provisions
and the Master Plan.

68. The Master Plan and the zonal
plan specify the user as residential and
therefore these plots cannot be used for
any other purpose. The plans have a
binding
effect
in
law.
If
the
scheme/master plan is being nullified by
arbitrary
acts
and
in
excess
and
derogation
of
the
power
of
the
Development Authority under law, the
Court will intervene and would direct
such authorities to take appropriate
action and wherever necessary even
quash the orders of the public authorities.

72. From the above dictum of this
Court, it is clear that environmental
impact, convenience of the residents and
ecological
impact
are
relevant
considerations for the courts while
deciding such an issue. The law imposes
an obligation upon the Development
Authority to strictly adhere to the plan,
regulations and the provisions of the Act.
Thus, it cannot ignore its fundamental
duty by doing acts impermissible in law.
There is not even an iota of reason stated
in the affidavits filed on behalf of the
Development Authority as to why the
public notice had been issued without
amending the relevant provisions that too
without
following
the
procedure
prescribed under the law."

18. The similar view has been taken
in the case of Machavarapu Srinivasa Rao
and another Vs. Vijavawada, Guntur,
Tenali, Mangalagiri Urban Development
Authority and others, (2011) 12 SCC 154
in paragraph 20, which is extracted herein
below:-

20.

An
analysis
of
the
abovenoted provisions shows that once the
master plan or the zonal development plan
is approved by the State Government, no
one
including
the
State
Government/Development Authority can
use land for any purpose other than the one
specified therein. There is no provision in
the Act under which the Development
Authority can sanction construction of a
building, etc. or use of land for a purpose
other than the one specified in the master
plan/zonal development plan. The power
vested in the Development Authority to
make modification in the development plan
is also not unlimited. It cannot make
important alterations in the character of
the plan. Such modification can be made
only by the State Government and that too
after following the procedure prescribed
under Section 12(3)."

19. If the Developer has made a false
promise to its allottees or the petitioners,
they may seek appropriate remedy against
the Developer, but they cannot encroach
upon the rights of the Nagar Nigam of
using 18 meters wide approach road,
leading to 24 meters wide road which
connects to Amar Shaheed Path. In view of
the specific stand of the Developer, the
petitioners cannot claim a higher right than
what the Developer has. The sanctioned
building plan specifically provided 18
meters wide approach road from 24 meters
wide road, running parallel to the land of
the
Lucknow
Nagar
Nigam.
Any
6 All. Dr. Dheeraj Singh Vs. State of U.P. & Ors.
169
obstruction created either by the Developer
or the petitioners is illegal and would
amount unauthorized encroachment. The
writ petition, therefore, lacks merit and is
liable to be dismissed.

20.

With
the
aforesaid
observations/directions, the present writ
petition is hereby dismissed.
----------
(2021)06ILR A169
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.06.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 9735 of 2020
Alongwith
Misc. Single No. 4515 of 2020

Dr. Dheeraj Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav Mehrotra, Maria Fathima, Santosh
Kumar Tripathi

Counsel for the Respondents:
C.S.C., Abhishek Yadav, Archana Yadav, Atul
Dwivedi, Atul Kumar Dwivedi, Dr. L.P. Mishra,
Lalta Prasad Misra, Prabhat Kumar Mishra,
Sharad Pathak

(A) Civil Law - The Societies Registration
Act, 1860 - Section 4 - Annual list of
managing body to be filed, Section 4-A -
Changes etc. in rules to be intimated to
Registrar , Section 4-B - list of members of
General Body of that society shall be filed
with the Registrar - an individual member
is not authorized to take up the cause of
the Society unless he is so authorized.
(Para - 80)

 (B) Civil Law - The Societies Registration
Act, 1860 - Deputy Registrar - Authority -
powers conferred under the Societies
Registration Act, 1860 - covered under the
Article 12 of the Constitution of India - all
its decisions are required to comply with
the doctrine of equality and fairplay
including granting of an opportunity of
hearing - order impugned does not reflect any
application of judicial mind nor it incorporates
any reasons in the order - any order which is
bereft of reasons cannot be sustained as it
violates the basis principles of equity and
fairplay - Held - Deputy Registrar has abdicated
its duties and the impugned order has been
passed without granting opportunity of hearing
to the petitioner(Dr. Dhiraj Singh) also it does
not refer to the entire facts and material before
the Authority concerned nor the effect and
implications of the material before it was
considered apart from the fact that the
impugned order is bereft of reasons and is liable
to be set aside. (Para - 110,114,117)

(C) The Societies Registration Act, 1860 -
byelaws of the Society - unless and until a
person is a subsisting valid and bonafide
member of a Arya Samaj in that district,
he cannot be a member of Arya Pratinidhi
Sabha
-
Deputy
Registrar
rejected
representation of petitioner (Devendra Pal
Verma) - petitioner could not establish that he
was a member of the Arya Pratinidhi Sabha -
Held - as far as the merit of the order dated
02.11.2019 is concerned, the same does not
suffer from any error apparent on the face of
the record nor the finding recorded by the
Deputy Registrar in the said impugned order can
be termed to be perverse or the conclusion
arrived at is such that any prudent person could
not arrive at such a conclusion, hence, this
Court is not persuaded to intervene in the
matter.(Para -118,123,124,131)

Writ Petition (No. 9735 (MS) of 2020)
allowed.

Writ Petition ( No. 4515 (MS) of 2020)
dismissed. (E-6)

List of Cases cited:-

1. Ayub Khan Noor Vs St.of Mah. , 2013 Vol. (4)
SCC 465.