# M/s Khurram Carpets Pvt. Ltd. & another v. State of U.P.& others

- **Citation:** (2001) 1 ILRA 52
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-08-04
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-khurram-carpets-pvt-ltd-another-v-state-of-u-p-others-39754
- **Pages:** 11

## Text

52 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. In an attempt to promote and
boost tourism in the holy city of Varanasi,
which is already on the tourist map of the
country, a number of projects have come
up. The World Bank has also sanctioned
substantial amount to bring Varanasi on
International Tourist Map of the world.
Construction of new hotels is the integral
part of the promotion of tourism. The
petitioner-company, i.e. M/s. Khurram
Carpets Pvt. Ltd. Is having a tie with
Raddison Group of Hotels and with a
view to construct a five star hotel at plot
Nos.4/1 and 4/2, Mauja Araji Line,
Mohalla Sikraul, Near Varuna Bridge,
Varanasi submitted a plan for sanction to
the
Varanasi
Development
Authority
(hereinafter
referred
to
as
"the
Authority")
constituted
under
the
provisions of U.P. Urban Planning and
Development
Act,
1973
(hereinafter
referred to as "as Act"). The proposed
five star hotel building is to have seven
floors besides basement. The plan was
sanctioned by the Authority on 9.8.1995
and an outside limit of three years was
provided to complete the construction
work, meaning thereby the life of the
sanctioned plan was to expire on 8th
August, 1998. In view of various
difficulties, the constructions as per the
sanctioned plan. Could not be completed
within the time frame. The petitioners
applied on 4.8.1998 for extension of time
1All] M/s Khurram Carpets Pvt. Ltd. & another V. State of U.P.& others
53
 by two years to complete the
construction of building. The basement,
ground floor and the first floor portion of
the hotel building had been constructed.
There were certain sharp unauthorised
deviations and in view of voluntary
compounding scheme the constructions
which were not in conformity with the
sanctioned plan were compounded after
the petitioners had deposited a sum of
Rs.3,94,908/- on 19.2.2000. In this
manner the offending constructions on the
basement, ground floor and the first floor
came to be regularised. The petitioners
continued the construction of the second
and third floor of the building to which
the Authority took an exception and
served the petitioners with a notice under
Section 27 and 28 of the Act and called
upon
them
to
explain
under
what
authority further constructions are being
made as the life span of the original plan
had already expired on 8.8.1998. The
petitioners submitted an explanation that
the repeat floors are being constructed
strictly in accordance with the original
sanctioned plan. The Authority passed
orders for stopping further constructionwork. On 29th May, 2000 the Vive
Chairman of the Authority directed that
the building under construction be sealed
in view of provisions of Section 28A(4)
of the Act so that the petitioners are
prevented
from
carrying
on
further
construction- work on the spot, which
according to Authority was an illegal
activity, as the original sanctioned map
has run out its life. With the police help
the site of the disputed construction was
sealed. On the representation of the
petitioners the Commissioner of the
Division who also happened to be the ex
officio Chairman of the Authority passed
an order that the premises be unsealed and
no interference be caused in the on-going
work. Ultimately this order was recalled
by the Commissioner of the Division
when full facts, it appears, were brought
to his notice by the Authority. The
application
of
the
petitioners
dated
4.8.1998 for extension of time was
rejected by the Authority on 13.6.2000.

2. The petitioners preferred an
appeal before the Commissioner of the
Division, who by the impugned order
dated 3rd July, 2000 remanded the case to
the Vice-Chairman of the Authority for
taking decision afresh in the matter. The
direction
issued
by
the
Commissioner/appellate
authority,
translated into English runs as follows:
"7. In the conspectus of the above
analysis the matter is remanded to the
Vice-Chairman, Varanasi Development
Authority with the direction that in case
the appellant (petitioner) submits an
application for renewal or revalidation of
the originally sanctioned plan as per rules,
then it shall be disposed of according to
law by a speaking order within a week.
The seal put on the site of the disputed
construction be opened subject to the
condition that if the appellant commences
further construction work in that event the
site shall be sealed again. Accordingly
appeal
no.177
of
2000
and
appeal/representation no.171 of 2000 are
disposed of ...."

Pursuant to the above order of the
appellate authority/Commissioner of the
Division the petitioners have submitted a
fresh plan on 6.7.2000. The Authority
raised
certain
objections/queries
on
12.7.2000 (Annexure-13 to the petition)
and sought the clarification from the
petitioners, who have submitted their
reply, a copy of which is Annexure -14 to
the petition. The site of construction still
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
continues to be sealed as the Authority
has filed a review application before the
appellate authority with regard to the
direction of unsealing the same.

3. By means of this writ petition
under Article 226 of the Constitution of
India the petitioners have challenged the
order dated 3.7.2000 passed by the
appellate authority in appeal no.177 of
2000, a copy of which is Annexure-10 to
the petition as well as order dated
29.5.2000, Annexure - 7 to the petition,
passed by the Vice-Chairman of the
Authority-respondent no.4 for sealing the
site of the construction under Section 28A(4) of the Act and the order dated
12.7.2000, Annexure-13 to the petition,
whereby a number of queries/objections
have been raised on the fresh plan
submitted by the petitioner. It is prayed
that the aforesaid orders be quashed and
the
respondents
be
prohibited
from
interfering, in any manner whatsoever, in
the ongoing construction of the hotel
building over plot Nos.4/1 and 4/2, Mauja
Araji Line, Mohalla Sikraul, Near Varuna
Bridge, Varanasi. It is further prayed that
the respondents be commanded to open
the seal put on the existing constructions
at the site aforesaid.

Counter and rejoinder affidavits have
been exchanged.

4. Heard Sri V.K. Shukla, learned
counsel for the petitioners and Sri Satish
Chaturvedi, learned counsel appearing on
behalf of respondent-Authority as well as
learned Standing Counsel.

5. Sri Satish Chaturvedi, learned
counsel
for
the
respondent-Authority
pointed out and took a preliminary
objection about the maintainability of the
present petition on the ground that since
the matter in respect of construction on
the site in question is under consideration
of
the
Hon'ble
Supreme
Court in
S.L.P.No.9961-9963 of 2000 and the
parties have been directed to maintain
status quo with regard to the disputed
construction, the petitioners cannot be
permitted to undertake the work of
construction and, therefore, the various
relief's claimed by the petitioners in the
present petition cannot be granted, Sri
V.K. Shukla, learned counsel for the
petitioners maintained that the matter
which is pending before the Hon'ble
Supreme Court has nothing to do with the
disputed constructions as the special leave
petition has been preferred by the
respondent-Authority against the order
dated 23.5.2000 passed in Civil Misc.
Writ Petition No.29087 of 1998 filed by
Durgesh Shanker Mathur and others and
the orders dated 17.5.2000 and 23.5.2000
passed
in
Civil
Misc.
Contempt
Application No.42216 of 2000 arising
out of the said miscellaneous writ
petition.
In
order
to
resolve
this
controversy and for the sake of clarity it s
necessary to reproduce the contents of
paragraphs 3 and 35 of the counter
affidavit
filed
by
the
respondentAuthority. These paragraphs read as
follows:

"3. That is reply to contents of
paragraph no.1 of the writ petition it is
stated that though this is the first writ
petition with regard to the property
subject matter of the present writ petition,
however, it is stated that the property in
question has already been made subject to
the contempt application under Article
215 of the Constitution of India being
contempt application No.42216 of 2000
arising out of Writ Petition No.20987 of
1All] M/s Khurram Carpets Pvt. Ltd. & another V. State of U.P.& others
55
1998. It is further stated that the subject
matter of the present writ petition,
however, it is stated that the property in
question has already been made subject to
the contempt application under Article
215 of the Constitution of India being
contempt application No.42216 of 2000
arising out of Writ Petition No.20987 of
1998. It is further stated that the subject
matter of the present writ petition is the
property being No.4/1 & 4/2 Mauja Arazi
Line, Ward Sikraul, near Varuna Bridge,
Varanasi and to show that the said very
property was the subject matter of the
contempt application No.42216 of 2000,
copy of the judgment dated 17.5.2000 is
being filed herewith and marked as
ANNEXURE NO.CA-1 to this counter
affidavit.

Thus, it is stated that since the
property which is in question has already
been subject matter in earlier case arising
out of Writ Petition No.20987 of 1998,
the present writ petition is liable to be
dismissed on this ground alone."

"35. That contents of paragraph
no.38 of the writ petition are denied. It is
denied that there is any illegality or
arbitrariness
in
the
action
of
the
answering-respondent. It is further stated
that since the petitioners have already
raised
a
dispute
with
regard
to
construction over site No.4/1 & 4/2 Mauja
Araji Lne, near Varuna Bridge, Ward
Sikraul, Varanasi in contempt petition
No.42216/2000 under Article 215 of the
Constitution of India arising out of Writ
Petition No.20987 of 1998 as is clear
from the order dated 17.5.2000, copy of
which has already been filed as Annexure
No.CA-1 to this counter affidavit.

It is further stated that subsequently
the writ petition No.20987 of 1998 was
allowed
finally
vide
judgment
date
23.5.2000. It is further submitted that
against the order passed in the writ
petition as well as in the contempt petition
the
answering-respondents
have
filed
S.L.P. before the Hon'ble Supreme Court
being
S.L.P.
No.9961-9963/2000,
whereby the Hon'ble Court has been
pleased to stay the orders passed by this
Hon'ble Court. Copy of the judgment
passed in S.L.P. is being filed herewith
and marked as ANNEXURE NO.CA-9 to
this counter affidavit.

It is further submitted that after the
judgment/order passed by this Hon'ble
Court, wherein the petitioner has already
raised dispute with regard to the property
situated over site No.4/1 & 4/2 Mauja
Araji Line, near Varuna Bridge, Ward
Sikraul, Varanasi which is the subject
matter of the present writ petition. The
petitioners have filed the present writ
petition, however, till the order passed by
this Hon'ble Court is in operation the
present
writ
petition
deserves
no
consideration.

It is further stated that in the writ
petition subsequently on 14.7.2000 the
petitioner has again moved an application
with regard to on-going construction over
site No.4/1 & 4/2 Mauja Araji Line, Ward
Sikraul, near Varuna Bridge, Varanasi
which is the subject matter of the present
writ petition and to prove the same copy
of the said contempt application (except
annexures) is being filed herewith and
marked as ANNEXURE NO.CA-10 to
this counter affidavit.

It is further stated that since the
matter is pending with the Hon'ble Court
56 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
as such the present writ petition requires
no
consideration
and
liable
to
be
dismissed."

In Annexure CA - 10 to the counter
affidavit, which is a copy of the
application
moved
in
Contempt
Application No.42216 of 2000 under
Article 215 of the Constitution of India,
reference of the site on which the disputed
constructions are going on has been made
in paragraphs 7,8,9, an d10. The various
orders with regard to the disputed site i.e.
plot nos. 42, Mauja Araji Line, Mohalla
Sikraul, Near Varuna Bridge, Varanasi,
which have been challenged in the present
petition have been specifically referred to
in the said application and the conduct of
the Vice-Chairman Sri V.S. Bhullar has
been criticised, A specific prayer (iii) has
been made in the contempt Application
under Article 215 of the Constitution of
India, which runs as follows:

"(iii) To issue a direction that the conduct
of Shri Jagat Raj Tripathi, Joint Secretary
Varanasi
Development
Authority
be
investigated in so far as it relates to the on
going construction at site no. 4/1 and 4/2
mauja Araji Line, Near Varuna Bridge,
Varanasi, as per the sanctioned Map,
wherein
he
is
not
permitting
the
construction to proceed in spite of
sanctioned Map being there, only on
account of the fact that requisite amount
of money demanded by him is not being
paid to him;"

An interim order issuing notice was
passed by a Division Bench of this Court
on the said contempt application on
18.5.2000 followed by a final order dated
23.5.2000 in the contempt petition as well
as in Writ Petition No. 20987 of 1998.
Both the orders passed on the contempt
petition as well as on writ petition have
been challenged before the Apex Court by
filing Special Leave to Appeal No. 99619963 of 2000 on which the Hon'ble
Supreme Court has passed an order on
20.7.2000, the relevant portion of which
is extracted below:

"...till further operation of the impugned
orders passed by the High Court are
stayed Mr. Mishra, the learned senior
counsel appearing for respondent No.1
states that original sanctioned plan would
be produced by the respondent No. 1 on
the next date of hearing parties are
directed to maintain status quo as of today
with regard to the disputed construction.
Contempt
proceeding
against
the
petitioner
shall
also
remain
stayed.
Counsel for the respondent No.1 prays for
and is granted two weeks time for filing
counter affidavit Rejoinder affidavit, if
any, may be filed within two weeks
thereafter."

6. In view of the above facts, now
the preliminary question for determination
is whether the order passed by the apex
court on 20.7.2000 directing the parties to
maintain the status quo (as on the date of
the order) with regard to the disputed
construction
would
apply
to
the
constructions which are the subject matter
of the present writ petition. For the
reasons which are to follow, I would
hasten to conclude that the aforesaid order
of the apex court dated 20.7.2000 passed
in Special Leave to Appeal No. 99619953 of 2000 does not debar the present
petitioners to maintain the petition. The
earlier writ petition no. 20987 of 1998
was filed by one Drgesh Shankara Mathur
with regard to the constructions made
over Araji No. 313 Mauja Cantt. Sikrol
district Varanasi as per approved plan
1All] M/s Khurram Carpets Pvt. Ltd. & another V. State of U.P.& others
57
dated 16.5.1998 by the Authority. The
following
relief's
were
specifically
claimed in the aforesaid writ petition:-

"(i) Issue a writ, order or direction in the
nature of mandamus, commanding and
restraining the respondent nos. 2 and 3
and
its
agents
and
servants
from
demolishing any construction raised over
Araji No. 313, Mauza Cantt. Sikraul,
district Varanasi as per the approved plan
dated 16.5.1998 by the vice Chairman of
Varanasi
Development
Authority,
Varanasi;
(ii) issue a writ order or direction in the
nature of mandamus commanding the
respondent no. 2 and 3 to restore status
quo ante as it existed in the afternoon of
26.6.1978in regard to the property no. 313
, Mauza Cantt. Sikraul, Varanasi by
raising the boundary wall, as it existed at
the said point of time:
(iii)
(iv)

The property which was involved in
the earlier writ petition, filed by Durgesh
Shankar Mathur is distinct separate and
away from the site which compises of
Arazi no. 4/s and 4/2, Mauza Arazi Civil
Lines, Sikraul, near Varuna Bridge,
Varanasi. The owners of the two
buildings are different and they have
nothing in common with them. In the
earlier writ petition, the constructions had
already been completed and there was a
threat for their demolition and as a matter
of fact a portion of the boundary wall was
demolished.

It
was
in
these
circumstances,
that
the
relief's,
as
extracted above, came to be claimed and
were ultimately granted by this court. In
the present case, the constructions were
commenced pursuant to the plan which
was originally sanctioned on 8.8.1995.
Since the constructions could not be
completed within the period specified,
further extension of time was sought and
the dispute is with regard to the raising of
the further constructions in pursuance of
the original plan, life of which has
expired. The present petitioners could not
be and were not party to the earlier writ
petition no. 20987 of 1998 and there was
not even a shisper in the averments made
in the earlier writ petition about plot no.
4/1 and 4/2, Mauza Arazi Civil Lines,
Sikraul, district Varanasi. One cannot
escape from the conclusion that whatever
has
been
stated,
considered
and
determined in the earlier writ petition no.
20987 of 1998 has nothing to do with the
property, which is the subject matter of
the instant writ petition and the persons
who are the petitioners.

7. The whole confusion appears to
have arisen on account of the fact in the
application under Article 215 of the
Constitution of India, for initiating action
against
the
officials/officers
of
the
respondent-Authority
for
the
alleged
flagrant violation of the order of this
court, a reference was made in an
incidental manner with regard to the
property, which is involved in the present
writ petition, to lend strength to the
assertion that the officials/officers of the
Authority were out to harass the builders
for extraneous considerations and since
the same officers were involved in
harassing the present petitioners for
ulterior and extraneous purposes, it was
prayed that the conduct of those officers,
particularly, that of Sri Jagat Raj Tripathi,
Joint Secretary, Varanasi Development
Authority be investigated. This court
finally decided the Civil Misc. Writ No.
20987 of 1998 on 23.5.2000 granting the
requisite relief's. On the application for
58 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
contempt under Article 215 of the
Constitution of India, and order has been
passed by the same Division Bench on
23.5.2000
(
in
Criminal
Contempt
application no. 42216 of 2000 / Criminal
Contempt Petition No. 35/2000, the
Varanasi Development Authority as well
as the alleged contemnors have filed
Special Leave to Appeal on which the
order dated 20.7.2000 as quoted above,
was passed by the apex court. The order
that the parties shall maintain status quo
as on the ate of the order with regard to
the disputed construction has no bearing
on, relation to, or nexus with site nos. 4/1
and 4/2, which are the properties in
dispute in the petition, in hand. The order
of the apex court, of necessity, has to be
confined with regard to the property no.
313
Mauza
Cantt.
Sikraul
district
Varanasi which was disputed in Civil
Misc. Writ No. 20987 of 1998. The
submission of the learned counsel for the
Varanasi Development Authority that on
account of the order of the apex court
dated 20.7.2000 passed in Special Leave
to Appeal no. 9961-9963 on 2000, the
present writ petition is not maintainable,
is wide off the mark as there is nothing in
common between the two writ petition in
the conspectus of the facts stated above.

8. Having cleared the decks from the
cobwebs spun by the learned counsel for
the contesting respondents about the
maintainability
of
the
present
writ
petition. Now it is the time to consider the
merits of the present writ petition. It is an
indubitable fact that a plan to construct a
five-star hotel building with seven floors
besides the basement was sanctioned by
the Authority on 9.8.1995. The entire
building was to be completed within a
period of three years, meaning thereby the
sanction was to ensure up to 8.8.1998,
which was the deadline. The petitioners
did commence the work of construction
but could reach only up to the level of the
basement, ground floor and first floor and
consequently before the approach of the
deadline they applied on 4.8.1998 for
extension of time by two years to
complete
the
project.
The
various
deviations which came to be made by the
petitioners in the construction of the
basement, ground floor and first floor
portions
were
compounded
and
regularised by the respondent-Authority
on deposit of Rs.3,94,908. The bogey of
the
unauthorised
construction
or
deviations cannot now be raised by the
respondent-Authority as it has itself
condoned the deviations after accepting a
substantial amount as per rules. The
whole trouble started when the petitioners
were prevented from raising the repeat
floors on and above the first floor. The
respondent-Authority, it appears laboured
under the impression that since the
original period of three years has expired
the sanctioned plan has lapsed and,
therefore, any further building activity
would be in teeth of the provisions of
Section 27 of the Act liable to be stopped
and since the petitioners continued to
raise their constructions, the drastic
provisions of Section 28-A (4) of the Act
were invoked. The petitioners, on the
other hand, were swayed away by the idea
that since their unauthorised constructions
have been compounded they are entitled
to continue with the building activity of
the repeat floors. They, therefore,
approached the Commissioner of the
division/Chairman of the Authority to
intervene in the matter. The stand taken
by the petitioners found favour with the
Chairman and he issued instructions to the
Vice Chairman of the Authority to unseal
the site so that the on-going building
1All] M/s Khurram Carpets Pvt. Ltd. & another V. State of U.P.& others
59
activity may not come to a halt There was
apparent resistance on the part of the
officers of the Authority who, to some
extent went out of the way to flout the
orders of their Chairman. When the
orders passed by the Chairman on the
administrative
side
failed
to
evoke
favorable response, the petitioners had to
take
the
recourse
to
the
judicial
proceeding by filing a formal appeal
under the provisions of sub-section (2) of
Section 27 of the Act. The appeal was
decided by the Chairman on 3.7.2000 and
the matter was remanded to the Vice
Chairman to dispose of the application for
renewal or revalidation of the original
sanctioned plan as per rules within a
week.

Accordingly,
the
petitioners
submitted a fresh plan on 6.7.2000.
Instead of revalidating or renewing the
original plan, the officers of the Authority
incensed as they were, had chosen to raise
certain frivolous objections. They did not
pass orders for renewal or revalidation of
the original sanctioned plan.

9.

I
have
given
thoughtful
consideration to the matter with reference
to the rival contentions of the parties and
the material brought on the record and
find that the various contentions raised on
behalf
of
the
petitioners
are
not
unfounded. With a view to regulate the
building activity in a developmental area,
it is necessary to sanction the building
plans. Sanction of plans has an element of
public purpose. The time limit within
which the work of construction is to be
completed is fix in order to encourage the
building activity and to develop the area
within the specified period. However, the
dead line by which the constructions are
required to be completed be sacrosanct
and in view of the Various difficulties,
imponderables and the exigencies, which
may not be for seen, the life of the plan
may be extended by passing an order
which in the common parlance is termed
as revalidation or renewal of the plan
originally sanctioned. One cannot lose
sight of the fact that seven storeyed
(besides the basement) hotel building is a
giganitic venture fraught with certain
difficulties
which
cannot
be
easily
visualised.
The
re
request
of
the
petitioners for extension of two year's
time to complete the project in the
circumstances
appeared
to be quite
genuine
and
reasonable.
After
the
offending
constructions
had
been
compounded, prayer for extension of time
should have been, in the normal course,
allowed by the Authority.

10. Sri V.K. Shukla, learned counsel
for the petitioners urged that in spite of
the orders passed by the Chairman in
appeal, the officers of the respondentAuthority are not prepared to see to
reason and have adopted an attitude of
hostility against the petitioners and the
matter
has
been
allowed
to
pend
unnecessarily to the serious detriment of
the petitioners, who are in a quandary
after having invested a huge money in
making apart of the constructions which
they are not able to complete on account
of the arbitrary, uncalled for, reckless and
callous attitude of the officers of the
respondent-Authority as somehow they
have entertained a feeling that the adverse
orders in the earlier writ and contempt
petitioners came into being at the behest
of the present petitioners. It was also
urged that the application dated 4.8.1998
moved by the petitioners for extension of
time was rejected by the Authority on
13.6.2000, i.e., after about 22 months of
its filing on totally insufficient, untenable
and tenuous grounds with a view to defeat
60 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the legitimate claim of the petitioners to
complete the project.

11. The Vice Chairman of the
Authority and other officers subordinate
to him have acted in cohesion against the
interest of the petitioners and were out to
deliberately cause loss to them. The
entire exercise was directed in a manner
so as to defeat the legitimate rights of the
petitioners who were at all stages
prepared to obey orders and directions of
the Authority. This is obvious from the
fact that after the submission of the plans
by the petitioners on 6.7.2000 pursuant to
the orders of the appellate authority, an
attitude of pinpricking and hair splitting
was
adopted
by
raising
frivolous
objections. The frivolity of the objections
raised on behalf of the Authority may be
exemplified in order to demonstrate the
unfairness on the part of the officers and
employees of the respondent-Authority In
the letter dated 12.7.2000, addressed by
the
respondent-Authority
to
the
petitioners, a copy of which is Annexure
13 to the writ petition, the first objection
raised
is
that
the
petitioners
have
diminished and consumed the parking
space in the basement by raising partition
walls which act is objectionable both from
technical and planning point of view. The
petitioners in their reply, a copy of which
is Annexure 14 to the writ petition, have
clarified that the partition walls. Which
are purely of temporary nature have been
put up with a view to accommodate and
provide space for housing the masons and
labourers
who
are
engaged in the
construction of huge project and after the
building work is complete and the
workers are relieved of their job, the
temporary partition walls are liable to be
removed and eventually the entire area
shall be made available for parking
purposes. It is common knowledge that
temporary structures are put up for
accommodating the labourers at the site
itself and after the completion of the
building labourers quit the place and
move out. The Authority has raised the
objection just for the sake of objection so
that the renewal or validation of the plan
submitted by the petitioners in view of the
direction of the appellate court may
continue to remain pending. This attitude
of
the
respondent-Authority
is
reprehensible
and
cannot
but
be
condemned. Now when the petitioners
have to make the constructions of repeat
floors there hardly appears to be scope for
any valid and tangible objection.

12. There is yet another aspect of the
matter. With a view to relieve the public
of the harassment occasioned in getting
the building plans sanctioned the State
Government has simplified the procedure
by taking a policy decision. The original
period of validity of three years of a
building plan for a commercial or a group
housing scheme has been extended to five
years. This policy decision of the State
Government is contained in Avas Neeti
Karya Pariyojna circulated by Housing
Department of State of U.P, Lucknow in
March 1999, a copy of which is Annexure
11 to the writ petition. Sri Satish
Chaturvedi,
learned counsel for the
respondent-Authority appears to be of the
view that no government order has been
issued pursuant to the policy decision and,
therefore, reference to the aforesaid Avas
Neeti karya Pariyojna is otiose. This
submission is clearly in opposition to the
provisions of Section 41 of the Act. It
contemplates
control
by
the
State
Government
over
the
Development
Authority, its Chairman or the Vice
Chairman. Sub-section (1) of Section 41
1All] M/s Khurram Carpets Pvt. Ltd. & another V. State of U.P.& others
61
lays
down
that
the
Authority,
the
Chairman or the Vice Chairman shall
carry out such directions as may be issued
to it from time to time by the State
Government
for
the
efficient
administration
of
the
Development
Authority. It is not disputed that Avas
Neeti Karya Pariyojna, Annexure 11 has
been issued by the State Government. Not
only this, alive to the situation, the State
Government has also capped the policy
decision by issuing Government Order
No.M/182-9 -3/97-38 Misc./97 dated 30th
September, 2000 and the validity period
of the plan sanctioned for a commercial
building stands extended to five years.
Even after the expiry of the period of five
years life of the plan may be extended
thrice on year to year basis. The policy
decision that the life of the plan
sanctioned for commercial buildings or
group housing shall be five years with
further extensions on year to year basis
has
to
be
implemented
by
every
Development Authority constituted under
the
Act.
These
directions
of
the
Government cannot be ignored or, in any
manner, frustrated. The attitude of the
respondent-Authority in pestering and
harassing the petitioners, in the instant
case, cannot but be condemned.

13. From the material brought on
record, one can easily infer that the
respondent-Authority has not been fair in
dealing with the petitioners. The variety
of reasons, which impelled the Authority
to adopt hostile attitude, are not too for to
seek, Sri V.K. Shukla learned counsel for
the petitioners pointed out that the action
of
the
respondent-Authority
and its
officers has not only been arbitrary or
capricious but certainly discriminatory.
He pointed out that in the case of another
hotel
building
known
as
M.M.
Continental
Hotel,
the
respondentAuthority has adopted a partisan attitude,
inasmuch as, in spite of the fact that the
entire building has been constructed
against the provisions of the plan, it has
been allowed to be continued and some
orders for compounding of the offending
constructions appear to have been passed
surreptitiously. To fortify his contention,
the record of the M.M. Continental Hotel
was required to be summoned. On the
application of the petitioners, Sri V.B.
Singh, who was earlier counsel for the
respondent-Authority
undertook
to
produce
the
record
of
the
said
establishment on the next date, but for the
reasons best known to the Authority, the
record was not produced and it was
deliberately
withheld
obviously
with
olique motive. The court has been
deprived of the opportunity of wading
through the record of M.M. Continental
Hotel. A legitimate adverse inference
may, therefore, be drawn against the
respondent-Authority that it has applied
different yardsticks in the matter of
construction of Hotel building in the
developmental area of Varanasi. The
respondent no.3 is a public authority and
there are prethora of decisions of Hon'ble
the Supreme Court as well as this court
that a public body should not have
unfettered discretion in dealing with the
citizens.
In
this
connection,
I
am
reminded of the observations made by
Prof. Wade in his book 'Administrative
Law'. He sad :-
" The powers of public authorities are,
therefore, essentially different from those
of private persons. A man making his will
may, subject to any rights of his
dependants, dispose of his property just as
he may wish . He may act out of malice or
a spirit of revenge, but in law this does
not affect his exercise of his power. In the
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
same way a private person has an absolute
power to allow whom he likes to use his
land, to release a debtor, or, where the law
permits, to evict a tenant, regardless of his
motives. This is unfettered discretion. But
a public authority may do none of these
things unless it acts reasonably and in
good faith and upon lawful and relevant
grounds of public interest.

There are many cases in which a
public authority has been held to have
acted from improper motives or upon in
relevant considerations, or to have failed
to take account of relevant considerations,
so that its action is ultra vires and void."

The action of the public authority,
therefore, must be based on some rational
and relevant purpose. It must not be
guided
by
irrational
or
irrelevant
considerations. It is expected a statutory
public authority must exercise its powers
in public interest and for public good .
Misuse of power implies doing of
something improper. The essence of
impropriety is replacement of public
motive for a private one. Certainly the
decisions which are capricious cannot be
legitimate.

14. Without dilating over the matter
any further, suffice it to say that the
respondent-Authority is duty bound to
pass
appropriate
orders
for
validating/revewal of the plan submitted
by the petitioners in the light of the
directions made by the appellate court as
well as the observations made above.
Already there has been a considerable
delay
in
completing
the
work
of
construction.
If
the
Authority
had
extended time in view of the policy
decision taken by the State Government
for extension of the validity period of the
plans and had not sealed the site, hotel
building by now would have reached an
advanced stage. The petitioners should
not be permitted to suffer any further due
to the arbitrary, unjustified and callous
attitude of the officers of the Authority.

15. This writ petition is finally
decided with the direction that the
respondent
no.3-Authority
shall
immediately pass orders (not later than 15
days from the date of copy of this
judgement is produced before it) for the
revalidation/renewal of the plan filed by
the petitioners and release the same
pursuant to the order dated 3.7.2000 of
the appellate authority as well as the State
Government dated 30.9.2000 and after
removing the seal from the site, it shall
make it available for further constructions
according to the original sanctioned plan,
without any let or hindrances.

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