# Madhuwan Nagar Sahkari Avas Samiti Ltd. Agra and another v. Agra Development Authority, Agra and another

- **Citation:** (2003) 3 ILRA 808
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-17
- **Case number:** Civil Misc. Writ Petition No. 13397 of 1993
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhuwan-nagar-sahkari-avas-samiti-ltd-agra-and-another-v-agra-development-40207
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Writ of
Mandamus Society raising unauthorized
construction
over
green
belt
areawhether can mandamus be issued to
continue
such
illegality?
Held-NoDirection issued to the Registrar General
for information and proper enforcement.

Held-Para 17 and 18

In this case by making such illegal
constructions in the green belt the law
has been thrown to the winds. This court
cannot accept this state of affairs. No
constructions
can
be
permitted
to
continue any longer in the green belt,
and even a map for construction cannot
be sanctioned there.

The
respondents
are
directed
to
forthwith demolish all the constructions
including those of the members of the
petitioner society in the green belt area
of Agra forthwith with an iron hand,
without any pick or choose. No leniency
must be shown in this matter. The
petition is dismissed, and interim order is
vacated.
Case law discussed-
1999 (6) SCC 464 (vide paragraph 73), 1999
(6) 2177, 1974 SC 2177, 1991 (4) SCC 54 and
1995 (2) SCC 577.

## Text

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808 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
to hold a trial or enquiry. In case a
defamatory letter is posted at A to be read
at B, the offence can be tried either at
place A or B (Vide M.R. Krishnamurthi
Iyar Vs. C.V. Parasurama Iyar, AIR 1923
Mad.
666;
and
Pisupati
Purnaiah
Sidhanthi Vs. Pisupati Satyanarayana
Sidhanthi, AIR 1959 AP 657).

11. In The Public Prosecutor Vs.
T.A. Rathnam Pillai, AIR 1958 Mad 155,
it was held that where an offence is a
continuing offence, it may be enquired
into or tried in any local area in which it
continues to be committed.

12. Thus in view of the above, an
inference can be drawn that any Court, in
whose territorial jurisdiction an offence
has partly been committed, would have
jurisdiction to hold the trial or enquiry. It
appears that the provisions of Cr.P.C. are
analogous to the provisions of Section 20
of the Code of Civil Procedure, which
provides that Courts have a territorial
jurisdiction where the cause of action has
arisen fully or partly.

13. In the instant case, if examined
in the light of aforesaid settled legal
proposition, it remains undisputed that the
accused had gone to the house of the
deceased at Delhi and taken him with
them from there. His wife has lodged the
report of his missing at Police Station
Paschim Vihar, New Delhi and it is a
matter of investigation as to with what
intent the accused had gone to the
deceased's house and where, in fact, the
offence has been committed.

14. We are of the considered opinion
that in this fact situation Delhi Police has
a competence to investigate into the
matter. More so, learned counsel for the
petitioner failed to satisfy us as what is
the right of the accused to choose the
investigating agency in such a case and
what is the prejudice which is likely to
occur to him if the investigation is carried
out by the Delhi Police and the trial is
held in Delhi.

15. Investigation is a preliminary
stage in the detection of a crime. So far as
investigation into any crime or offence is
concerned, it is purely for the collection
of evidence. It is immaterial whether it is
done by Delhi police or U.P. police. Till
the stage of investigation, question of
prejudice is not likely to arise. It generally
occurs at the stage of trial. It is more so in
the cases like the one at hand. Here there
are two F.I.R., one of gumshudgi, lodged
by the wife, and the other lodged at
Ghaziabad by the brother of the deceased.
In cases like this, both the State's police
has jurisdiction to investigate, there is no
doubt in the legal position.

16. Petition is totally misconceived,
lacks merit, and therefore, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.7.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 13397 of 1993

Madhuwan Nagar Sahkari Avas Samiti
Ltd. Agra and another
...Petitioner
Versus
Agra Development Authority, Agra and
another

 ...Respondents

Counsel for the Petitioners:
Sri B.D. Mandhyan
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3 All] Madhuwan Nagar Sahkari Avas Samiti Ltd and another V. A.D.A., Agra and another
809
Counsel for the Respondents:
Sri Swami Dayal
Sri K.S. Chaudhry
Sri V.K. Birla
S.C.

Constitution of India, Article 226-Writ of
Mandamus Society raising unauthorized
construction
over
green
belt
areawhether can mandamus be issued to
continue
such
illegality?
Held-NoDirection issued to the Registrar General
for information and proper enforcement.

Held-Para 17 and 18

In this case by making such illegal
constructions in the green belt the law
has been thrown to the winds. This court
cannot accept this state of affairs. No
constructions
can
be
permitted
to
continue any longer in the green belt,
and even a map for construction cannot
be sanctioned there.

The
respondents
are
directed
to
forthwith demolish all the constructions
including those of the members of the
petitioner society in the green belt area
of Agra forthwith with an iron hand,
without any pick or choose. No leniency
must be shown in this matter. The
petition is dismissed, and interim order is
vacated.
Case law discussed-
1999 (6) SCC 464 (vide paragraph 73), 1999
(6) 2177, 1974 SC 2177, 1991 (4) SCC 54 and
1995 (2) SCC 577.

(Delivered by Hon'ble M. Katju, J.)

1. This petition furnishes a typical
instance of a widespread malady which
has infected our society and the body
politic, namely the belief in the rich and
mighty of our country that they are above
the law.

2. By means of this writ petition the
petitioners have prayed for a mandamus
directing the respondents not to demolish
the houses in Jangjeet Nagar, Agra or the
houses of any individual member of the
petitioner society and to regularise the
colony of the petitioners on payment of
compounding fee.

3. The petitioner no. 1 is a society
registered under the Societies Registration
Act. It purchased land from agriculturists,
which is recorded as abadi land. On that
land
the
Society
members
have
constructed residential houses, and the
colony is known as Jangjeet Nagar. The
society has 200 members, all of whom
have been allotted plots in the colony. It is
alleged in paragraph 3 of the petition that
out of them 100 have constructed full
fledged houses and are residing therein
and the remaining have raised boundary
walls with gates. It is alleged that it is
posh locality inhabited by Advocates,
Engineers,
Army
Officers,
Bank
Managers, Government employees etc.
with Public Schools etc. The petitioner
society has developed the land as stated in
paragraph 6 of the petition.

4. In paragraph 7 of the writ petition
it is alleged that the respondents are
harassing the colonizers and they are
trying to extract illegal money from them
or their members. They are terrorizing the
inhabitants
and
are
threatening
to
demolish the houses. The officials of the
Agra Development Authority come with
police and are creating terror in the
locality. Aggrieved this writ petition has
been filed.

A counter affidavit has been filed
and we have perused the same.

5. In paragraph 4 of the counter
affidavit it is denied that the land in
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810 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
question was recorded as abadi. In
paragraph 5 of the counter affidavit it is
stated that the petitioners have not
disclosed the names of the alleged
members of the society nor they have
filed any documents to support their
allegations. It is stated that on the spot
some houses ranging between 10 to 12
have been erected in a haphazard manner,
but
such
constructions
are
wholly
unauthorized. There is no sanctioned lay
out plan in favour of such persons and as
such these constructions are illegal.

6. In paragraph 9,14 and 15 of the
counter affidavit it is stated that the
colony is situated in an area ear- marked
as green belt in the master plan of Agra.
Hence the question of sanctioning of any
colony or compounding the unlawful
constructions of the petitioner does not
arise. In paragraph 16 it is stated that even
the Agra Development Authority is not
entitled to convert the user of the land
shown in the master plan as green belt as
the master plan has been prepared by the
Government and the Government alone
can change the land user. In paragraph 17
of the counter affidavit it has been stated
that the land in Shastripuram colony is not
in the green belt area while the land of the
colony in question is wholly within the
area of green belt as shown in the master
plan . Hence there is no discrimination.

7. In paragraph 22 of the same it is
denied
that
the
people
are
being
terrorized. The action is only being taken
in accordance with law. In paragraph 26
of the same it is stated that the
constructions of the petitioners are not
only unauthorized, there is also no
sanctioned plan for the same. Also they
have made constructions in a haphazard
manner
and
have
obstructed
the
development process.

8. In our opinion there is no merit in
this petition. As stated in paragraph 9, 14
and 15 of the counter affidavit, the
constructions in question are wholly
illegal and unauthorized having been
made in the green belt area shown in the
master plan. The constructions have been
raised without sanction of lay out plan
and are hence liable to be demolished. We
are of the clear opinion that the members
of the petitioner society have raised
constructions on green belt area, which is
wholly impermissible, and no lay out or
map can be sanctioned on the same.
Compounding of any construction made
on the green belt is out of the question as
it not permissible under the law, and all
constructions in the green belt area have
to be demolished forthwith.

9. In M.I. Builders Pvt. Ltd. v.
Radhey Shyam Sahu 1999 (6) SCC 464
(vide paragraph 73) the Supreme Court
observed: -"This court in numerous
decisions has held that no consideration
should be shown to the builder or any
other person where construction is
unauthorized. This dicta is now almost
bordering the rule of law. Stress was laid
by the appellant and the prospective
allottees of the shops to exercise judicial
discretion in moulding the relief. Such a
discretion cannot be exercised which
encourages illegality or perpetuates an
illegality. Unauthorized construction, if
it is illegal and cannot be compounded,
has to be demolished. There is no way
out. Judicial discretion cannot be guided
by expediency. Courts are not free from
statutory fetters. Justice is to be rendered
in accordance with law. Judges are not
entitled to exercise discretion wearing
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3 All] Madhuwan Nagar Sahkari Avas Samiti Ltd and another V. A.D.A., Agra and another
811
the robes of judicial discretion and pass
orders based solely on their personal
predilections and peculiar dispositions.
Judicial
discretion
wherever
it
is
required to be exercised has to be in
accordance with law and set legal
principles."

10. As seen from the observation of
the Supreme Court, it has specifically
been
laid
down
that
unauthorized
constructions if they are illegal and cannot
be compounded have to be demolished.

11. In R.A. Agarwal v. Corporation
of Calcutta, 1999 (6) 2177, the Supreme
Court directed demolition of a multi
storeyed building, which had been
constructed in violation of the building
rules. The Supreme Court also granted
police protection to carry out the
compliance order.

12. In K.P. Shenoy v. Udipi
Municipality, AIR 1974 SC 2177, the
Udipi
Municipalityk
had
permitted
construction of a Cinema House in a
residential
area.
This
grant
of
permission
was
challenged
in
the
Supreme Court, which held that a public
authority has no power to contravene the
bye laws made by that authority (vide
paragraph 27). It was further held by the
Supreme Court (in paragraphs 28 and
29) that illegal commercial use by
constructing a Cinema house invades the
right of the residents.

13. In Munshi Ram v. Union of
India, 2000 (7) SCC 22, the Supreme
Court has observed (in paragraph 9):

"The continued unauthorized user
would give the paramount lessor the
right to re-enter after cancellation of the
lease deed. As already noticed, DDA is
insisting on stoppage of misuser. The
misuser is contrary to the terms of the
lease. DDA cannot be directed to permit
continued misuser contrary to the terms
of the lease on the ground that the zonal
development plan of the area has not
been framed."

14. In Banglore Medical Trust v.
B.S. Muddakppa, 1991 (4) SCC 54, the
Supreme Court observed that open space
reserved for a public park cannot be
converted into a site for hospitals and
nursing homes. In Virendra Gaur v.
State of Haryana, 1995 (2) SCC 577 it
was held that Municipal Land earmarked
for open space for public use cannot be
leased out to a private party.

15. In the present case the rules have
been totally flouted by the so called elite
of society. They have illegally made
constructions in the green belt area of the
master plan. No indulgence can be
granted to such so called sophisticated
people who claim to be the cream of
society but flout the law so flagrantly. If
these so called educated people can flout
the law in this manner and get away with
it what example will be set for others ?
Does the law exist in our country only for
the poor and not for the rich, influential or
powerful.

16. The matter has been dragging on
since the year 1993 in view of the interim
order of this Court dated 26.4.1993, and
we are of the opinion that it should not be
allowed to drag on any longer and all
constructions in the green belt must be
demolished forthwith. The mere fact that
there are Advocates, Engineers, Army
Officers, Government Employees and
Bank Managers living in the said colony
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812 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
is neither here or there. No one is above
the law. These so called educated and
affluent persons have committed gross
violation
of
the
law
by
making
constructions on the green belt without
any sanctioned lay out plan. If this is
permitted it will send a wrong signal that
the Rules and Regulations exist only on
paper and are not to be taken seriously.
This Court cannot countenance such a
state of affairs. The Rule of Law
postulates that every one however mighty
he may be, should be under the law. "Be
you ever so high, the law is above you."

17. In this case by making such
illegal constructions in the green belt the
law has been thrown to the winds. This
court cannot accept this state of affairs.
No constructions can be permitted to
continue any longer in the green belt, and
even a map for construction cannot be
sanctioned there.

18. The respondents are directed to
forthwith demolish all the constructions
including those of the members of the
petitioner society in the green belt area of
Agra forthwith with an iron hand, without
any pick or choose. No leniency must be
shown in this matter. The petition is
dismissed, and interim order is vacated.

19. Let the Registrar General of this
Court send copy of this judgment
forthwith to the Commissioner, Agra
Division, the District Magistrate, Agra
and
the
Vice
Chairman,
Agra
Development Authority who will ensure
strict compliance of this judgement.
Copy of this order will be supplied to the
learned Standing Counsel free of charge
today and he will communicate it to these
authorities.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.7.2003

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 21651 of 2001

Mohd. Naseem Ansari
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.S. Misra

Counsel for the Respondents:
Sri Rakesh Pande
C.S.C.

Constitution of India Article 226- oral
termination
contractual
employee
of
corporation working for more then three
years
claiming
regularisation.
Heldappointment not made on substantive
Post can not claim regularisation in
absence of Policy for regularisation.

Held-Para 6

The appointment letter of the petitioner
on contractual basis clearly indicates
that he was engaged for a certain period
and thereafter he had no right of
employment
of
any
post
with
the
respondents-Corporation.
His
appointment not having been made on
any substantive post, he cannot claim
regularization. Learned counsel for the
petitioner has not been able to place any
policy of the Corporation under which he
is
claiming
regularization.
On
the
contrary it is the specific case of the
respondents that the U.P. Government
had issued Government Orders, which
strictly prohibited the creation of any
post
during
the
financial
year
in
question. In the absence of any policy for
regularization
of
service,
the
relief
prayed
for
cannot
be
granted.