# M/s D. Kumars & Co v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-21
- **Case number:** Writ-C No. 7729 of 2024
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-d-kumars-co-v-state-of-u-p-ors-51725
- **Pages:** 10

## Headnote

Sri Anuj Mandhyan, C.S.C., Sri Harsh Vardhan
Gupta, Sri Rahul Sahai, Sri Vibhu Rai, Sri Anoop
Trivedi (Sr. Adv.), Sri Ganjendra Pratap (Sr. Adv.)

Completion
certificate-Impugned
orderpetitioner's application for issuing completion
certificate has not been accepted- initially a
building plan was approved for construction
of 16 units on the premises in question- but
the construction of 16 units did not proceed -
on account of inter se dispute-raised by the
fifth
respondent
and
other
co-sharers-
pending consideration in proceedings before
the civil court-no injunction passed- petitioner
voluntarily gave an affidavit that it would not
proceed with the construction on unit Nos. 6
and 7 -and would await the outcome of
pending litigation- on this basis subsequent
permission for construction of 14 units was
granted- authority having specifically granted
permission - cannot go contrary to the
stipulations made in its own order-mandamus
issued.

Writ Petition allowed. (E-9)

## Text

1488 INDIAN LAW REPORTS ALLAHABAD SERIES
decide Issue No.3 against the petitionertrust.

CONCLUSION

111. For all the aforesaid reasons,
the Court is not inclined to interfere with
any
of
the
order/
notice/
Office
Memorandum/ decision impugned in the
present writ petition or grant any other
relief claimed by the petitioner.

112. The writ petition fails and is,
accordingly, dismissed, however, without
imposing any cost.

113. The Bench Secretary shall
forthwith return the original record to Sri
Sudhanshu Srivastava, learned Additional
Chief
Standing
Counsel
for
being
transmitted to the State Government.
----------
(2024) 4 ILRA 1488
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR RIZVI, J.

Writ-C No. 7729 of 2024

M/s D. Kumars & Co. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ishir Sripat, Sri Srijan Pandey, Sri Swetashwa
Agarwal, Sri Rahul Sripat (Sr. Adv.)

Counsel for the Respondents:
Sri Anuj Mandhyan, C.S.C., Sri Harsh Vardhan
Gupta, Sri Rahul Sahai, Sri Vibhu Rai, Sri Anoop
Trivedi (Sr. Adv.), Sri Ganjendra Pratap (Sr. Adv.)

Completion
certificate-Impugned
orderpetitioner's application for issuing completion
certificate has not been accepted- initially a
building plan was approved for construction
of 16 units on the premises in question- but
the construction of 16 units did not proceed -
on account of inter se dispute-raised by the
fifth
respondent
and
other
co-sharers-
pending consideration in proceedings before
the civil court-no injunction passed- petitioner
voluntarily gave an affidavit that it would not
proceed with the construction on unit Nos. 6
and 7 -and would await the outcome of
pending litigation- on this basis subsequent
permission for construction of 14 units was
granted- authority having specifically granted
permission - cannot go contrary to the
stipulations made in its own order-mandamus
issued.

Writ Petition allowed. (E-9)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. This writ petition arises out of an
order passed by the Vice Chairman,
Prayagraj Development Authority, dated
15.2.2024, contained in Annexure No. 1
to the writ petition, whereby petitioner's
application
submitted
for
issuing
completion certificate has not been
accepted. The application itself was filed
pursuant to the liberty granted by this
Court
in
petitioner's
previous
writ
petition no. 42231 of 2023. The petitioner
submits that the order impugned is
wholly arbitrary and is in teeth of the
previous adjudication made by this Court
in petitioner's earlier writ.

2. The impugned order of the
Vice Chairman runs into eight pages.
Paragraph No. 1 to 21 of the order notices
facts relating to the controversy raised.
The findings and conclusion in the order
under challenge is contained in para 22,
which is reproduced hereinafter:-
4 All. M/s D. Kumars & Co. Vs. State of U.P. & Ors.
1489
"22.
वबन्दु
सं०-21
तथ्यों
पर,
आिाररत िोने के कारण हकसी हर्प्पणी की
आिश्यकता निी िै।
उपरोि तथ्यो/पर्त्राििी का अििोकन
तर्था माननीय उच्च न्यायािय के आदेि के
िम में यि तथ्य विहदत िै हक-
(i) जोनि अधिकारी के पर्त्र सं०17/जोन-2/उप०-2जी(27)/वि०प्रा०/2019-20
हदनांक 09.10.2023 द्वारा पार्ज आफ नजूि फ्री
िोलड प्िार् नं०-35,35ए िूकरगंज, तिसीि
सदर, प्रयागराज का बगैर पूणजता प्रमाण पर्त्र
प्राप्त हकये उपभोग हकये जाने के कारण नोहर्स
धनगजत की गयी, जबहक अनुमधत पर्त्र के
प्रधतबन्ि संख्या-2 में यि व्यिस्र्था हदया गया िै
हक स्िीकृधत अनम्न्तम (Provisional) स्िीकृधत
के रूप में िोगी पूणजतया प्रमाण पर्त्र प्राप्त करने के
बाद िी पररसर को िास्तविक उपभोग में धिया
जा सकेगा।
(ii) विकासकताज द्वारा Exchange Deed
हदनांक 06.05.2017 के पैरा-6 में ingress and
egress से समबम्न्ित तथ्यो को िुपाते िुए
मानधचर्त्र स्िीकृत कराया गयािै। विकासकताज
के अनुरोि पर 14 आिासीय इकाईयो का िमन
मानधचर्त्र स्िीकृत हकया गया।Exchange Deed
के पैरा-6 में ingress and egress में दी गयी
व्यिस्र्था के अनुसार 2 आिासीय इकाईयो (6 ि
7 को िोडकर) 14 इकाई का िमन मानधचर्त्र
स्िीकृत हकया गया।
(iii) प्रश्नगत प्रकरण में प्राधिकरण द्वारा
16 आिासीय इकाईयो का मानधचर्त्र परधमर्
संख्या-149/प्र०अ०(त०स०)/जोन2/प्रस्ता०/2018-19 हदनांक 11.03.2019 भू-
विन्यास/र्ाईप हडजाइन प्रस्तावित मानधचर्त्र
स्िीकृत हकया गया। विकासकताज द्वारा स्िीकृत
मानधचर्त्र से स्र्थि पर विचिन हकये जाने के
कारण तर्था प्रधतिादी सं०-6 के धिकायत के िम
में िमन मानधचर्त्र 14 इकाई के रूप में स्िीकृत
हकया गया, ताहक Exchange/Sale Deed की
ितो को पूरा हकया जा सके। इस प्रकार
प्राधिकरण द्वारा स्िीकृत 14 इकाईयो का
पूणजतया प्रमाण पर्त्र देने में हकसी तरि की
अडचन निी िै, परन्तु विकासकताज द्वारा
Exchange/Sale Deed की ितज सं०-6 के
अनुसार रास्ते का प्रावििान करने अर्थिा
माननीय धसविि जज (िररष्ठ श्रेणी) गिी
इिािाबाद के समक्ष िम्मबत प्रकरण में पाररत
िोने िािे अन्तररम/अम्न्तम आदेि के अनुसार
आिेदन करने पर धनयमानुसार पूणजता प्रमाण
पर्त्र हदया जा सकता िै। "

3. Although the Vice-Chairman has
recorded in his order that there is no
hindrance in issuance of completion
certificate in respect of 14 units yet the
completion certificate has not been issued
to the petitioner.

4. In order to appreciate the
controversy raised some of the background
facts are required to be noticed. A building
plan
was
initially
approved by
the
Prayagraj Development Authority on 11th
of March, 2019 in favour of the petitioner
for construction of 16 residential units, on a
parcel of land being part of freehold plot
no. 35 and 35A, Lukerganj, Prayagraj. The
construction project was got registered with
U.P. Real Estate Regulation Authority on
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
15.10.2019. This registration was initially
valid for a period of three years and is
stated
to
have
been
extended
upto
2.10.2023. It transpires that the plot on
which these constructions were permitted
to be raised belonged partly to the
petitioner and rest to Rajesh Kumar
Athwani, Deepak Kumar and Umesh
Athwani. These private individuals had
transferred part of their share earlier in
favour of the present petitioner.

5. It transpires that an exchange
deed was executed between petitioner's
vendor and Respondent No. 5 in the present
petition on 06.05.2017 as a result of which
133.4 sq.meter land falling in the project
area was exchanged with 96.6 sq.meter
land belonging to petitioner's vendor. This
exchange deed contained a stipulation in
Clause-6, which is reproduced hereinafter:-

"6. That the Second Party shall
however have right to ingress and egress
from the North side of their Property, to the
property and man entrance of the property
of the First Party as aforesaid from the
Main Road, marked Red in the annexed
Site Plan, whereby Main Entrance of the
Property of the First Party from Main Road
shall be common to entry to the Property of
the Second Party."

6. The fifth respondent apparently
objected to the ongoing constructions
commenced by the petitioner in terms of
the sanctioned map on the ground that their
right to passage, existing between the 16
row houses would be obstructed and
thereby the sixth clause of the exchange
deed would stand violated. This was so as
no passage was provided in terms of
Clause-6 in the building plan sanctioned on
11.3.2019. Consequently, a suit being
Original Suit No. 187 of 2021 came to be
instituted by respondent no. 5 and others
before the Civil Court at Prayagraj. In the
said suit the present petitioner is arrayed as
the only defendant. Prayer in the nature of
mandatory injunction has been claimed in
the suit, which is reproduced hereinafter:-

"By
means
of
mandatory
injunction, the defendant be directed to
erect 30 ft. wide common passage from
North of the plaintiffs Land shown by
letters. A.H.I.C. linking the same to 30 ft.
wide
common
road
erected
by
the
defendant which goes from East to West
and which has been shown in the map
sanctioned by the P.D.A. on 11/03/2019,
within the time provided by the court,
failing which the decree complied with
through the Court."

7. Other ancillary reliefs were also
sought in the matter. It is admitted that the
suit is pending and there is no interim
injunction granted to the fifth respondent in
the suit, so far.

8. It transpires that objections were
also
made
by
the
private
respondent/plaintiffs
before
the
Development Authority on account of
alleged breach of the covenants in the
exchange deed. The petitioner was also
confronted with this aspect of the matter. It
is at this juncture that the petitioner
submitted a compounding plan stating that
they would not raise any construction on
units Nos. 6 and 7 proposed to be
constructed as per building plan sanctioned
on 11.3.2019 awaiting adjudication of the
suit in respect of Clause-6 of the exchange
deed. The petitioners, therefore, claimed
before the authority that they be permitted
to raise construction on the remaining 14
units. This compounding plan/building
permission was approved on 15th of
4 All. M/s D. Kumars & Co. Vs. State of U.P. & Ors.
1491
December, 2021, subject to Clause 5 to 7 of
the sanction letter, which are reproduced
hereinafter:-

"5. इकाई नं०-6 ि 7 सीि रिेगी, उि
धनधमजत
इकाई
पर
कोई
अधतररि
धनमाजण/हफधनधसंग का कायज निीं हकया जायेगा
और न िी उि इकाई का वििय अर्थिा वििय
अनुबन्ि समपाहदत निीं हकया जायेगा।
6. सन्दधभजत प्रोजेक्र् में ingress and
egress के समबन्ि में िाद संख्या-187/2021
धसविि जज कधनष्ठ श्रेणी गिी इिािाबाद के
समक्ष िाद विचारािीन िै। उि के दृवष्टगत
ingress and egress से आच्िाहदत 2 इकाई
भिन सं०-6 ि7 को न्यायािय के धनणजय तक
सीि हकया जाना उधचत िोगा। इकाई नमबर-6
ि 7 का िमन भी निीं हकया गया िै। भिन
संख्या-6 ि 7 का वििय/वििय अनुबन्ि
आिेदक/विकासकताज द्वारा निीं हकया जायेगा।
इस
िेतु
हदये
गये
िपर्थ
पर्त्र
(INUP69191438669463T हदनााँक 15.12.2021)
का अनुपािन बाध्यकारी िोगा।
7- िाद संख्या-187/2021 धसविि जज
(कधनष्ठ श्रेणी) गिी इिािाबाद में िोने िािा
अम्न्तम धनणजय उभय पक्ष पर बाध्यकारी िोगा।
इस िेतु हदये गये िपर्थ पर्त्र (22AE921843
हदनााँक 22.11.2021) का अक्षरिः अनुपािन
बाध्यकारी िोगा।"

9. As allowed by the authority vide
permission dated 15.12.2021 the petitioner
has not proceeded any further with the
constructions on unit No. 6 and 7, which
continue to remain sealed in terms of
Clause 5 of the regularization/permission
dated 15.12.2021. There is no allegation
that these two units have either been sold or
any fresh rights have been created in favour
of anybody over it.

10. In terms of the permission
granted by the authority vide regularization
order dated 15th of December, 2021, the
petitioner
has
proceeded
to
raise
construction of 14 units and allegedly
completed it as per the approved plan. It is
thereafter that the petitioner moved an
application for issuance of completion
certificate, which was not considered. It
was in this context that the petitioner came
earlier before this Court by filing writ
petition no. 42231 of 2023. The authority
resisted petitioner's claim on account of
pendency of civil suit etc. The authority
was
confronted
with
the
specific
permission granted by it vide regularization
order dated 15.12.2021. Faced with it, the
authority undertook to examine petitioner's
claim. The writ petition was consequently
disposed of vide following orders:-

"Heard Sri Rahul Sripat, Senior
Counsel
assisted
by
Sri
Swetashwa
Agarwal for the petitioner and Sri Rakesh
Pandey, Senior Counsel assisted by Sri
Anuj Mandhyan for private respondent no.
6 as well as Sri A.P. Paul for the Prayagraj
Development Authority, Prayagraj.
The petitioner is a Real Estate
Company,
which
has
undertaken
constructions of certain villas on Plot Nos.
35 and 35-A, Lukerganj, Tehsil Sadar,
District Prayagraj. The original lay-out
was
sanctioned
by
the
Development
Authority providing for construction of 16
houses. The right to raise constructions
upon Plot Nos. 35 and 35A is derived from
an authority given to petitioner by the
owners of the plot. An area of 1137.04 sq.
1492 INDIAN LAW REPORTS ALLAHABAD SERIES
mtrs. from Plot No. 35A and 360 sq. mtrs.
out of Plot No. 35 have been purchased by
the petitioner and in respect of other
remaining land a "Builders Agreement"
exists. The building plan was sanctioned.
Subsequently, a compounding map has been
submitted by the petitioner which has also
been approved by the authority. The building
plan, which has been approved by the
authority, shows that houses exist on two
sides of a 30 feet passage and at its rear end.
An objection was raised by the sixth
respondent contending that he was promised
30 feet wide passage from the north of his
property
under
an
agreement
and
construction of house nos. 6 and 7, in the
sanctioned plan, would obstruct his ingress
and egress. It would also be in teeth of the
agreement
entered
into
between
the
petitioner's vendor and the 6th respondent.
An Original Suit No. 187 of 2021 has been
instituted by the 6th respondent before the
Civil Court, Prayagraj, which is pending. On
account of the dispute between the 6th
respondent and the petitioner's vendor, an
undertaking has been given by the petitioner
before the authority that it would not raise
construction of house nos. 6 and 7 and that
construction on such part of the land would
abide by the determination made by the Civil
Court. A plan for issuance of completion
certificate in respect of remaining 14 houses
has been submitted by the petitioner on
21.03.2023. Since such completion certificate
has not been given, the petitioner is before
this Court.
Learned Senior Counsel for the
petitioner submits that Section 15-A of the
U.P. Urban Planning and Development Act,
1973 (hereinafter referred to as 'Act of 1973')
provides for issuance of the completion
certificate. Such certificate is to be granted
by the development authority, if the
constructions are made as per the approved
plan and a notice of such completion is
given to the authority. The proviso
contemplates that if such certificate is not
granted, the completion certificate shall be
deemed to be granted within three months.
Relying upon such provision, it is alleged
on behalf of the petitioner that action of the
respondents in not issuing the completion
certificate is arbitrary. The petitioner is
also aggrieved by a communication issued
by the Zonal Officer dated 09.10.2023,
which
mentions
that
the
condition
mentioned in the sanctioned plan, that the
constructed premises would be utilized only
after completion certificate is issued, has
been violated. It is further mentioned in the
notice that without getting the completion
certificate issued, the petitioner is utilizing
villa no. 8, 9 and 11. A direction has been
issued to the petitioner not to utilize the
premises without getting the completion
certificate issued. Submission is that once
completion certificate in respect of 14
houses has been sought on 21.03.2023, and
no decision upon it was taken, the authority
is precluded from issuing the impugned
communication,
particularly
when
no
construction was otherwise raised on unit
nos. 6 and 7. According to the petitioner
the completion certificate is deemed to
have been issued.
Sri A.P.
Paul,
appearing
for
Development Authority states that in the
event such facts are placed before the
authority, an appropriate decision in terms
of Section 15-A of the Act of 1973 would be
taken by the authority. It is also urged that
the authority shall verify whether the
constructions made are as per the plan.
Sri Rakesh Pandey, Senior Counsel
appearing for 6th respondent states that
rights of the 6th respondent ought not to be
allowed to be obstructed by issuance of
completion certificate.
From the materials placed on
records it is not disputed that a building
4 All. M/s D. Kumars & Co. Vs. State of U.P. & Ors.
1493
plan for construction of 16 houses has been
sanctioned by the authority. There were
apparent issues between the petitioner's
vendor and the 6th respondent, and the
petitioner has clearly undertaken not to
raise any construction of unit no. 6 and 7.
Any development of these two residential
units would abide by the outcome of the
Civil Court. The petitioner has already
informed the authority that remaining 14
units have been constructed as per plan
and a prayer has been made for issuance
of a completion certificate. No objection
appears to have been made by the
authority against the application of
petitioner for issuance of completion
certificate.
In such circumstances, we permit
the petitioner to place such facts before
the authority along with certified copy of
this order within a week from today. The
Vice
Chairman
of
the
Development
Authority shall ensure that petitioner's
claim,
noticed
above,
is
accorded
consideration in accordance with law
within a further period of four weeks,
thereafter. The writ petition is disposed of,
accordingly."

11. It is, thereafter, that the Vice
Chairman of the authority has denied
issuance of completion certificate to the
petitioner despite holding that there is no
legal hindrance in issuance of such
completion certificate, taking shelter of the
inter se dispute between the petitioner and
respondent No. 5.

12.

The
writ
petition
was
entertained and as prima facie this Court
was of the opinion that having granted
permission to raise construction of 14 units
vide regularization order dated 15.12.2021
it was not open for the authority to deny
issuance of completion certificate. A further
opportunity was consequently allowed to
the authority to revisit the matter vide order
dated 11.3.2024. Paragraph Nos. 5 to 7 of
the order dated 11th of March, 2024 are
reproduced hereinafter:-

"5. The order of the Vice-Chairman
depicts
that
the
authority
has
not
understood
the
directions
issued
in
previous order passed by this Court. This
Court had clearly permitted the petitioners
to apply for issuance of completion
certificate in respect of 14 houses for which
alone compounding plan had already been
sanctioned. The consideration at the level
of the authority for issuance of completion
certificate was limited to these 14 houses.
The Vice-Chairman in his order states that
there is no hindrance in issuance of
completion certificate of 14 houses and that
such a certificate can be given subject to
ultimate adjudication to be made in the
civil suit in respect of condition no.6, which
pertains to the area beneath plot nos.6 and
7.
6. Once the officer found the plea
of grant of completion certificate to be
permissible in respect of 14 houses the
natural consequence of such observation is
that the completion certificate would be
issued in the matter. Instead of doing so,
the Vice-Chairman has again disposed of
the matter without actually doing anything.
This tendency to pass orders which
effectively does not deal with the grievance
of
the
litigant
creates
uncalled
for
litigation.
7. Before proceeding further, we
call upon the Vice-Chairman to file his
personal affidavit explaining and justifying
his action in the context of the findings
returned by the officer himself in the order
under
challenge.
The
officer
shall
specifically
explain
as
to
why
the
completion certificate has not been issued
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
once he found the issuance of completion
certificate to be permissible for 14 houses
in terms of his own order."

13. The Vice Chairman has filed
his personal affidavit, in which it is stated
that initially the plan was sanctioned for 16
dwelling units, and that a civil dispute is
pending in Original Suit No. 187 of 2021.
Paragraph Nos. 20 to 24 of the affidavit
filed by the Vice Chairman makes an
interesting reading and are reproduced
hereinafter:-

"20. That is most humbly submitted
that while requesting for completion
certificate
of
those
14
Units
the
unauthorized construction/un-compounded
constructions are required to be removed.
21. That is it humbly submitted
submitted that the request of the petitioner
is to issue completion certificate despite
there being un-compounded/unauthorized
constructions standing on the project site.
22. That the petitioner cannot
obtain completion certificate as against the
compounded layout/development plain.
23. That the completion certificate
can be forthwith granted if the sealed
constructions standing on the land of Unit
no. 6 & 7 may be demolished, as they are
the part of sanctioned plan the demand of
the petitioner presently is clearly reflecting
that he should be issued completion
certificate
despite
existence
of
uncompounded constructions in the project.
24. That it is humbly submitted that
the
completion
certificate
can
be
immediately
granted
in
case
uncompounded/unsanctioned
constructions
are removed or compounded in accordance
with law."

14. On behalf of the authority it is
stressed
that
while
uncompounded
structures over Unit No. 6 and 7 stand on
the plot, it would not be open for the
authority
to
consider
issuance
of
completion certificate in respect of 14
units. It is, therefore, stated that unless Unit
No. 6 and 7 are either demolished or
compounded, it would not be open for the
authority
to
issue
the
completion
certificate.

15. We have heard Shri Rahul
Sripat, learned Senior Counsel on behalf of
the petitioner, Shri Anoop Trivedi, learned
Senior
Counsel
for
the
Prayagraj
Development Authority and Shri Gajendra
Pratap,
learned
Senior
Counsel
for
respondent No. 5 and have perused the
materials on record.

16. The controversy raised in the
writ petition is extremely limited and in the
event the authority had carefully examined
its records in the context of applicable
provisions of law no occasion would have
arisen for the petitioner to repeatedly
approach this Court.

17. We have already taken note of
the facts and it is apparent that though
initially a building plan was approved for
construction of 16 units on the premises in
question, but the construction of 16 units
did not proceed on account of inter se
dispute, which came to be raised by the
fifth respondent and other co-sharers. The
fifth respondent essentially was claiming
right of ingress and egress to the passage
created in the project between the two set
of row houses. Contention of the fifth
respondent that petitioner would be bound
by the covenants of exchange deed
executed between the petitioner's vendor
and fifth respondent is an aspect pending
consideration in proceedings before the
civil court. No injunction has been passed
4 All. M/s D. Kumars & Co. Vs. State of U.P. & Ors.
1495
by the Civil Court in Original Suit No. 187
of 2019. However, in order to avoid any
further
complications,
the
petitioner
voluntarily gave an affidavit stating that
it
would
not
proceed
with
the
construction on unit Nos. 6 and 7 and
would await the outcome of pending
litigation before the civil court. It was on
the basis of this undertaking given by the
petitioner that the subsequent permission
for construction of 14 units was granted
by the authority vide compounding plan
dated 15th of December, 2021. The
compounding
plan
clearly
make
it
permissible for the petitioner to raise
construction of 14 units and the two units
i.e. unit Nos. 6 and 7 were specifically
required to be left as it is and was to
remain subject to the pending suit. The
stipulation contained in Clause 5 to 7 of
the
compounding
plan
dated
15th
December, 2021, categorically permitted
the petitioner to raise construction of 14
units. It is pursuant to this permission
granted by the authority on 15th of
December, 2021 that the petitioners have
applied
for
issuance
of
completion
certificate.

18. Section 15-A of the U.P.
Urban Planning and Development Act,
1973 provides for issuance of completion
certificate and is reproduced below:-

"15-A. Completion Certificate.
(1) Every person or body having
been granted permission under subsection (3) of section 15, shall complete
the
development
according
to
the
approved plan and send a notice in
writing of such completion to the
Authority, and obtain a completion
certificate from the Authority in the
manner prescribed or provided in the byelaws of the Authority. Provided that if
completion certificate is not granted and
refusal to grant it is not intimated within
three months after receipt of the notice of
completion, it shall be deemed that the
Completion certificate has been granted
by the Authority.
(2). No person shall occupy or
permit to be occupied any commercial
building or use are permit to be used such
building or part thereof affected building
or work until completion certificate has
been issued by the Authority, or
Authority has failed for three
months after the receipt of notice of
completion to intimate its refusal of grant
of the said certificate.
Explanation. - For the purposes of
this section, the expression 'commercial
building' shall have the meaning assigned
to it in the Uttar Pradesh Municipal
Corporations Act. 1959."

19. The Statute is clear and
categorical, inasmuch as an application
for grant of completion certificate can be
moved pursuant to a permission granted
under Sub-Section 3 of Section 15 of the
U.P. Urban Planning and Development
Act, 1973. The permission granted by the
authority on 15th of December, 2021
allowing 14 units to be constructed on the
spot was thus a permission pursuant to
which the completion certificate could be
claimed by the petitioner. The petitioner
has thus approached the authority for
issuance of such completion certificate.
The authority having allowed permission
on 15.12.2021 to raise construction of 14
units, subject to the conditions contained
in clause 5 to 7 of the order cannot be
permitted to resile from its earlier stand
and
refuse
issuance
of
completion
certificate only on the ground that unit
Nos. 6 and 7 have not been included in
the permission granted by the authority on
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
15th of December, 2021. The authority
having specifically granted permission
to raise 14 units cannot go contrary to
the stipulations made in its own order
dated 15.12.2021.

20. The stand taken by the
authority before this Court is completely
at variance with its own order dated 15th
of December, 2021. The permission
granted by the authority on 15th of
December, 2021 clearly provides that
unit No. 6 and 7 would remain sealed
and that no constructions would be
raised upon it. It is further stipulated in
the permission letter dated 15th of
December,
2021
that
the
final
adjudication in Original Suit No. 187 of
2021 would ultimately bind the parties
in respect of the claim raised before the
civil
court.
Having
specifically
so
provided in the regularization order
dated 15th of December, 2021, it is not
open for the authority now to say that
unless the constructions initially raised
on unit No. 6 and 7 are demolished or
compounded, the completion certificate
cannot be issued to the petitioner.

21. Despite the orders passed on
the previous occasion the authority has
failed to examine the matter in correct
perspective. Even, during the pendency
of the writ petition we have confronted
the Vice Chairman with the facts of the
case,
but
we
find
that
repeated
opportunity granted in the matter have
not been availed. The approach of the
Vice Chairman in sticking to its stand
notwithstanding the previous permission
granted and the directions issued in the
previous writ, cannot be appreciated.
Due diligence on the part of the
authority is to be appreciated, but the
manner in which the authority has been
insistent upon its stand contrary to the
statutory provisions as well as their own
orders deserves to be deprecated. We
stop at this.

22.

Once
the
plan
for
construction of 14 units was approved on
15th of December, 2021, the prayer for
issuance of completion certificate had to
be accorded consideration in terms of
Section 15-A of the Act of 1973. It is not
open for the authority to fall back upon
the ongoing private dispute between the
petitioner and the fifth respondent to
deny performance of its statutory duty or
to take sides in that regard.

23.

The
writ
petition,
accordingly, succeeds and is allowed.

24. A writ of mandamus is
issued to the Vice Chairman of the
Prayagraj Development Authority to
accord
consideration
to
petitioner's
application
for
issuing
completion
certificate
in
respect
of
14
units
constructed
pursuant
to
the
permission/regularization allowed by the
authority on 15th of December, 2021
within a period of four weeks from today
in light of the observations contained in
this judgment. We clarify that issuance
of completion certificate to the petitioner
would not be to the prejudice of the fifth
respondent, who will be entitled to press
its claim before the civil court and no
equity would be claimed in such civil
proceedings by the petitioner on account
of issuance of completion certificate
pursuant
to
permission
dated
15.12.2021.

25. No order is passed as to
costs.
----------
4 All. Jagoo @ Jagbir Vs. State of U.P. & Ors.
1497
(2024) 4 ILRA 1497
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2024

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 8266 of 2024

Jagoo @ Jagbir ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dinesh Rai, Sri Virednra Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constitution of India,1950Article
226-U.P.Minor
Minerals
(Concession)
Rules,2021-Rule
3-illegal
soil mining using JCB machine on land in
Khasra no.19 in violation of Rules 3 of the
Rules2021-Pet-Held,
Petitioner's
reply
indicated an admission of soil removal to
level the plot-The explanation in Rule 3
applies only to manual excavation for
making bricks or pottery, with a depth
restriction of two meters-the petitioner's
action
did
not
qualify
under
these
conditions-The penalty, not royalty, was
rightly imposed under rule 58 of the Rules
58 of the Rules 2021.(Para 1 to 14)

The writ petition is dismissed. (E-6)

(Delivered by Hon'ble Anjani Kumar
Mishra, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The petitioner by means of this
writ petition is challenging the order dated
08.12.2022
passed
by
the
District
Magistrate, Mathura and the order dated
06.11.2023 passed by the Commissioner,
Agra Division, Agra, whereby the order
passed by the District Magistrate has been
affirmed.

3. It appears that a notice was
issued to the petitioner alleging illegal
mining of soil in Khasra (Khata) No.19
area 3.933 hectares. The alleged excavation
over an area of 323 feet x 313 feet and upto
3 feet in the depth, using a JCB machine,
which amounted to violation of the
provisions of Rule 3 of the U.P. Minor
Minerals
(Concession)
Rules,
2021
(hereinafter referred to as the Rules, 2021).

4. The petitioner admittedly
replied to the notice. After considering the
reply of the petitioner, penalty to the tune
of Rs. 4,82,700/- was imposed upon the
petitioner by the order passed by the
District
Magistrate.
Hence
this
writ
petition.

5. The contention of learned
counsel for the petitioner is that no illegal
mining had been conducted by the
petitioner. In any case, the report of the
Lekhpal, which is the basis of the notice,
does not mention any date when the illegal
mining was carried out by the petitioner.
He has also stated that he has denied
having carried out any extraction of soil
using a JCB machine; there is no violation
of Rule 3 of the Rules, 2021; the impugned
orders are therefore, patently illegal and are
liable to be set aside. It is further contended
that in view of the explanation of Rule 3 of
the Rules, 2021, no illegality had been
committed by the petitioner.

6. Perusal of the reply to the notice,
filed by the petitioner reveals that it had been