# Mohd. Meherban Ansari v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-07
- **Case number:** Writ- C No. 15757 of 2020
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-meherban-ansari-v-state-of-u-p-ors-45175
- **Pages:** 5

## Headnote

A. Civil Law -U.P. Urban Planning and
Development Act, 1973 - Section 14 & 15
- Prior approval of Vice-Chairman - Necessity -
A co-joint reading of Section 14 and 15 of the
Act leaves an inescapable conclusion that no
development, defined in Section 2(e) to include
with its grammatical variations carrying out of
building,
engineering,
mining
or
other
operations in, on, over or under land, or the
making of any material change in any building
or land, and includes re-development, can be
undertaken without the prior approval of the
Vice-Chairman. (Para 6)

B. Civil Law -Compounding Scheme, 2020
- Permitting the acts prohibited under the Act,
1973 - Validity - The authorities of State cannot
frame scheme which is in teeth of express
provisions of the Act and goes wholly contrary
to
the
objects
enumerated
of
planned
development of urban areas - The authorities of
the State Government are expected to act in
furtherance of the object of the Act, so as to
stop illegal constructions and not to encourage
such illegal constructions upon payment of hefty
amount - This would clearly discourage the
honest citizens who ensure compliance of laws
by obtaining prior permission as per the Act of
1973 - Personal affidavit of Additional Chief
Secretary called upon, interim order issued.
(Para 12, 14, 15 and 16)

Petition kept pending (E-1)

## Text

10 All. Mohd. Meherban Ansari Vs. State of U.P. & Ors.
239

6. Since the petitioner has alternative
remedy of appeal as provided in the
aforequoted
Government
Order
dated
27.01.2011, therefore, we dismiss the
present writ petition, leaving it open to the
petitioner to file an appeal before the
appellate authority.

7. With the aforesaid observations, the
writ petition is dismissed.

8. If such an appeal is filed before the
appellate authority within four weeks from
today alongwith a copy of this order, then
the same shall be entertained by the
appellate authority without raising any
objection as to the limitation.
----------
(2020)10ILR A239
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.10.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ- C No. 15757 of 2020

Mohd. Meherban Ansari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Madhusudan Dixit

Counsel for the Respondents:
C.S.C., Sri Satyam Singh

A. Civil Law -U.P. Urban Planning and
Development Act, 1973 - Section 14 & 15
- Prior approval of Vice-Chairman - Necessity -
A co-joint reading of Section 14 and 15 of the
Act leaves an inescapable conclusion that no
development, defined in Section 2(e) to include
with its grammatical variations carrying out of
building,
engineering,
mining
or
other
operations in, on, over or under land, or the
making of any material change in any building
or land, and includes re-development, can be
undertaken without the prior approval of the
Vice-Chairman. (Para 6)

B. Civil Law -Compounding Scheme, 2020
- Permitting the acts prohibited under the Act,
1973 - Validity - The authorities of State cannot
frame scheme which is in teeth of express
provisions of the Act and goes wholly contrary
to
the
objects
enumerated
of
planned
development of urban areas - The authorities of
the State Government are expected to act in
furtherance of the object of the Act, so as to
stop illegal constructions and not to encourage
such illegal constructions upon payment of hefty
amount - This would clearly discourage the
honest citizens who ensure compliance of laws
by obtaining prior permission as per the Act of
1973 - Personal affidavit of Additional Chief
Secretary called upon, interim order issued.
(Para 12, 14, 15 and 16)

Petition kept pending (E-1)
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Petitioner is accused of having
raised constructions without obtaining prior
sanction from the Vice Chairman in terms
of Section 14 and 15 of the U.P. Urban
Planning and Development Act, 1973, and
consequently an order sealing the premises
has been passed against him, which has
also been affirmed in appeal. Aggrieved by
these two orders petitioner is before this
Court.

2. Learned counsel for the petitioner
states that the State Government has issued
a new Compounding Scheme, 2020, as per
which various constructions otherwise not
permissible in the building bye-laws have
also been made compoundable. It is
submitted that petitioner intends to avail of
benefit under the compounding scheme,
and therefore the authorities be directed to
240 INDIAN LAW REPORTS ALLAHABAD SERIES
examine his claim with reference to such
scheme and till then no further proceedings
be undertaken.

3. Learned Standing Counsel has been
heard for the State Authorities while Sri
Satyam Singh, Advocate, has been heard
for the Saharanpur Development Authority
(hereinafter referred to as ''the authority'). I
have perused the materials placed on record
and have also perused the Compounding
Scheme, 2020, notified on 15th July, 2020.
This scheme is apparently enforced for a
period of six months.

4. Records brought before this Court
in the present writ petition raise serious
concern for planned urban development in
the State of Uttar Pradesh, and therefore,
the Court is constrained to call upon the
State Government upon the issues noticed
hereinafter.

5. The U.P. Urban Planning and
Development
Act,
1973
(hereinafter
referred to as the ''Act of 1973') has been
enacted with the object of ensuring
development of certain areas of Uttar
Pradesh according to plan and for matters
ancillary thereto. Chapter- III of the Act of
1973 provides for hierarchy of plans i.e.
Master plan, Zonal Development plan,
Building Bye-laws and lay-out plan etc. All
development in the notified area of the
authority is required to be carried out
strictly in accordance with such plan(s).
Section 14 of the Act of 1973 clearly
mandates that no development within the
development area of the authority can be
allowed without prior approval of the Vice
Chairman of the authority. Section 14(1)
and (2) reads as under:-

"14. Development of land In the
developed area.-

(1) After the declaration of any
area as development area under Section 3,
no
development
of
-land
shall
be
undertaken or carried out or continued in
that area by any person or body (including
a department of Government)- unless
permission for such development has been
obtained in writing from the [ViceChairman)
in
accordance
with
the
provision of this Act.

(2)
After
the
coming
into
operation of any of the plans in any
development area no development shall be
undertaken or carried out or continued in
that area unless such- development is also
in accordance, with such plans."

6. Section 15 of the Act of 1973
specifies the manner of obtaining such
permission. A co-joint reading of Section
14 and 15 of the Act leaves an inescapable
conclusion that no development, defined in
Section 2(e) to include with its grammatical
variations
carrying
out
of
building,
engineering, mining or other operations in,
on, over or under land, or the making of
any material change in any building or
land, and includes re-development, can be
undertaken without the prior approval of
the Vice-Chairman.

7. The Vice-Chairman can also permit
development only in accordance with the
plans referred to in Part III, III-A & IV of
the Act of 1973 and the building bye-laws
framed thereunder. This scheme under the
Act is explicitly warranted for ensuring
planned development of the area notified
for the respective authority. Section 16 of
the Act of 1973 prohibits any development
contrary to the plan.

8. The Act of 1973 also provides for
the consequences that arise in the event
development is undertaken contrary to
10 All. Mohd. Meherban Ansari Vs. State of U.P. & Ors.
241
Section 14 of the Act of 1973. Various
measures including penalty, demolition,
sealing etc. have been provided for in
Chapter-VIII of the Act of 1973. Some of
such violations also constitute offence
under the Act for which proceedings can be
drawn as per the Act of 1973. Section 32 of
the Act of 1973 provides for composition of
offences. This provision apparently has
been
invoked
for
framing
the
Compounding Scheme, 2020, and is
therefore reproduced hereinafter:-

"32. Composition of Offences.-

(1) Any offence made punishable
by or under this Act may either before or
after the institution of proceedings, be
compounded-by the [Vice-Chairman (or
any officer authorised by him in that behalf
by General or Special order)] on such
terms, including any term as regards
payment of a composition fee, as the [ViceChairman) (or such officer) may think fit.

(2) Where an offence has been
compounded, the offender, if in custody,
shall be discharged and no further
proceedings shall be taken against him in
respect of the offence compounded."

Power to frame bye-laws is
otherwise conferred upon the authority
under Section 57 of the Act of 1973 which
can only be in furtherance of the provisions
contained in the Act of 1973.

9. The Compounding Scheme, 2020,
which is relied upon by the petitioner and is
Annexure-4 to the writ petition outlines its
necessity and objectives. Clause 1.1 states
that private capital has been invested in
illegal constructions undertaken in urban
areas of which demolition is neither
practicable nor is desirable from human
considerations. Clause 1.2 states that most
of such illegal constructions are not
compoundable as per the compounding
bye-laws of the authority and therefore
there is a need to regularize such illegal
constructions under a special compounding
scheme.
Clause
4
provides
for
compounding of illegal constructions made
till the issuance of the scheme. 20%
additional construction has been made
permissible over and above what is
permissible in the building bye-laws in
plots measuring upto 300 Sq. metres,
covering entire constructions in the side
and rear and 50% of the front set-back.
15% additional constructions in Group
Housing, Commercial, Institutional and
Multi-storied buildings is also made
permissible/compoundable over and above
the building bye-laws. Additional floor area
ratio (FAR) has also been allowed while
compounding the illegal constructions.
Various other impermissible developments
(constructions) in the building bye-laws
have also been made compoundable in the
scheme.

10. Clause 5 specifies the amount
payable
for
compounding
the
developments/constructions made contrary
to the Act of 1973. Huge amounts upto the
extent of 100% of the land cost needs to be
paid for compounding constructions which
are otherwise wholly impermissible in law.

11. What is being made permissible in
the compounding scheme, 2020, prima
facie, shows that the aims and objectives
underlying the Act of 1973 have been given
up by the State and activities prohibited by
law is being permitted upon payment of
huge sums to the authority/State.

12. Merely because large number of
persons have invested private capital for
raising constructions contrary to the Act
cannot be a ground to surrender the interest
of planned development for which the Act
242 INDIAN LAW REPORTS ALLAHABAD SERIES
of 1973 itself has been enacted. The
authorities of State cannot frame scheme
which is in teeth of express provisions of
the Act and goes wholly contrary to the
objects
enumerated
of
planned
development of urban areas. Substantial
public interest is involved in securing
planned development of urban areas in
accordance with the Act of 1973 which
cannot be sacrificed by a statutory scheme
which is otherwise not referable to any
provision contained in law.

13. Another aspect that arises for
consideration is the ambit and scope of
powers under Section 32 of the Act of
1973.
Prima
facie,
it
only
permits
compounding of offences under the Act of
1973 and cannot be stretched to permit
legalizing such constructions which are in
teeth of the Act of 1973. The permissible
norms of construction in the building byelaws also cannot be relaxed while framing a
scheme for compounding by the State. No
express provision under the Act of 1973 has
otherwise
been
enumerated
in
the
compounding scheme, 2020, whereunder it
is formulated.

14. A prima facie perusal of the
compounding scheme, 2020 would go to
show that the illegalities committed by
violating the provisions of the Act of
1973 by raising illegal constructions are
sought to be regularized upon payment
of
huge
composition
fee.
The
authorities of the State Government are
expected to act in furtherance of the
object of the Act, so as to stop illegal
constructions and not to encourage such
illegal constructions upon payment of
hefty
amount.
This
would
clearly
discourage the honest citizens who
ensure compliance of laws by obtaining
prior permission as per the Act of 1973,
inasmuch as they are subjected to
stricter norms provided in the building
bye-laws, while those who violate the
law are allowed to raise much larger
constructions,
which
is
not
even
permissible in the building bye-laws.
The
compounding
scheme,
2020,
otherwise appears to be wholly beyond
the scope of the Act of 1973 including
Section 32. Section 32 only permits
composition of offences and not permits
raising of constructions contrary to the
building plan. The compounding of
development undertaken contrary to the
Act of 1973 is therefore, prima facie,
found to be clearly contrary to the aims,
objectives and the provisions of the Act
of 1973.

15. The Additional Chief Secretary
of the department concerned shall file
his personal affidavit justifying the
Compounding Scheme, 2020, in light of
the above observations. Put up this
matter in the additional cause list, once
again, on 20.10.2020.

16. As substantial damage to the
aim
and
objectives
of
planned
development is likely to occur if the
compounding scheme, 2020 is given
effect
to,
therefore,
the
State
Government as also all development
authorities within the State of Uttar
Pradesh
are
restrained
from
compounding any illegal constructions
pursuant to the compounding scheme,
2020, notified by the State Government
on 15.7.2020. Till the next date of
listing the petitioner's constructions
shall also not be demolished and he
shall be restrained from raising any
further
constructions.
The
State
Government is further directed to
communicate this order to all the
10 All. Duncans Industries Ltd.(Fertiliser Div.), Panki Kanpur Vs. State of U.P. & Ors.
243
development authorities in the State for
necessary compliance.
----------
(2020)10ILR A243
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ- C No. 30660 of 2000

Duncans Industries Ltd.(Fertiliser Div.),
Panki Kanpur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri B.K. Mukerjee, Sri P.K. Mukerjee, Sri S.
Chatterjee

Counsel for the Respondents:
Sri S.M.A. Kazmi, Sri D. Chauhan, Ms.
Bushra Maryam, Sri Pankaj Srivastava, Sri
Rakesh Kumar, Sri Rohit Shukla, S.C.
Vikram, Sri Vikram D. Chauhan, Sri Sanjay
Singh Yadav

A. Labour law - Industrial Dispute Act, 1947
- Regularization of workmen - Continuous service
for 240 days in a calendar year - Its relevance -
Factum of continuous service for 240 days in a
calendar year is relevant under Section 6-N of the
Act, which relates to retrenchment of a workmen.
It is absolutely irrelevant to a workman's right to
claim regularization - However, consideration of
one irrelevant factor by the Industrial Tribunal
does not detract from the overall soundness of the
conclusion, considering other relevant factors that
have entered judgment - Held, the Labour Court
has reasonably concluded that from the date the
workmen have been engaged by the Employers,
they are in their regular and continuous
employment; the workmen were retained by the
Employers to do work of a perennial nature. (Para
38, 39 and 40)
B. Labour law - Regularization of workmen -
Principle relating to the State service - It's
applicability to Non-state service - The decision of
MP Housing Board's case and Umadevi's case
laying down the proposition that Courts, by
exercise of the judicial power, cannot thrust
regularization upon the executive; etc. are
bedrocks of support for the proposition that
Employers canvass - These principles are not open
to question in the field of service law, where
employment is either under the State or a State
Instrumentality - These principles, however, may
not apply in cases of industrial disputes, where the
Employers are an industry, who are not in any way
the State or a State Instrumentality - Held, if the
Industrial Tribunal were to find the action of the
Employer continuing their workmen under a
facade as casuals to do work of a permanent
nature, an unfair labour practice, there is no
principle that forbids the Tribunal under the Act
from undoing that injustice. (Para 44, 45 and 46)
C. Labour law - Industrial Tribunal - Finding of
facts - Unfair labour practice - Industrial Tribunal
has recorded a positive finding that it is case of
unfair labour practice by the Employers on the
facts and circumstances that show that the
Employers have retained the workmen as casual
hands to do work of a perennial nature - The said
finding is a pure finding of fact, based on
appreciation of evidence, about which there is no
demonstrable or manifest illegality - Held, no
illegality, much less a manifest illegality, can be
found in the impugned award. (Para 48 and 60)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Chandra Shekhar Azad Krishi Evam Prodyogiki
Vishwavidyalaya Vs United Trades Congress &
anr., (2008) 2 SCC 552.
2. M.P. Housing Board & anr. Vs Manoj
Shrivastava, (2006) 2 SCC 702
3. Secretary, St. of Kar. & ors. Vs Umadevi (3) &
ors.,(2006) 4 SCC 1
4. Indian Drugs & Pharmaceuticals Ltd. Vs
Workmen, Indian Drugs & Pharmaceuticals Ltd.,
(2007) 1 SCC 408