# Shiv Vatika Basrat Ghar & Anr v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-24
- **Case number:** Writ-C No. 37797 of 2018
- **Bench:** Pradeep Kumar Singh Baghel, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-vatika-basrat-ghar-anr-v-state-of-u-p-ors-44601
- **Pages:** 17

## Headnote

C.S.C., Sri Devi Prasad Mishra, Sri A.K.
Mishra, Sri Arun Kumar

A.
Noise
Pollution
(Regulation
and
Control) Rules, 2000 - Directions issued
in Sushil Chandra Srivastava and another
v. State of U.P. and others, Writ-C No.
1216 of 2019 to be strictly followed-no
loudspeaker to be used beyond the
permissible limit under the schedule of
the Rules, 2000.

Writ Petition pending (E-9)

List of Cases Cited: -

## Text

_Characters 0–39,693 of 55,768. This is a partial read: ask again with offset=39693 for what follows._

1508 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The instant petition is directed
against the order dated 18.1.2018 passed
by the trial court allowing application 50C filed by the defendant-respondent
seeking permission of the court to crossexamine
plaintiff's
witnesses.
It
is
noteworthy that the suit is proceeding
exparte against the defendant-respondent
and its right to file written statement
stands forfeited. It has been held by the
trial court that even then it would not be
debarred
from
cross-examining
the
witnesses
of
the
plaintiff-petitioner.
Aggrieved by the said order, the petitioner
filed a revision, which has also been
dismissed by the impugned order dated
29.4.2019.

2. Learned counsel for the
petitioner submitted that once the suit
was proceeding exparte against the
defendant-respondent, the trial court
erred in allowing the application for
cross-examination of the plaintiff's
witnesses.

3. In Arjun Singh Vs. Mohindra
Kumar and others, AIR 1964 SC 993,
the Supreme Court has explained the
scheme of Order 9 CPC. It has held that
where the court passes an order to
proceed exparte against the defendant, it
may take evidence of the plaintiff then
and there and also pronounce the
judgement. In other type of cases, the
evidence of the plaintiff might not be
concluded on the hearing day on which
defendant is absent and something
might remain so far as the trial of the
suit is concerned for which purpose
there might be a hearing on an
adjourned date. Consequently, if the
defendant appears on such adjourned
date and satisfies the Court by showing
good cause for his non- appearance on
the previous day or days, he might have
the earlier proceedings recalled-"set the
clock back" and have the suit heard in
his presence. On the other hand, he
might fail in showing good cause. In
such a case, he is not precluded from
taking part in the remaining proceedings
of the suit or whatever might still
remain. The only impediment is that he
cannot claim to be relegated to the
position
he
occupied
at
the
commencement of the trial.

4. It would thus mean that where the
evidence
of
the
plaintiff
had
not
concluded, the defendant against whom
exparte proceedings are being held, can
always appear before the trial court and
pray for cross-examining the plaintiff's
witnesses. The said right of the defendant
is not taken away merely for the reason
that an order was passed on a previous
date for holding exparte proceedings
against him.

5. Consequently, this Court finds no
illegality in the view taken by the courts
below in allowing the application of the
defendant-respondent to cross-examine
the plaintiff's witnesses.

6. The petition lacks merit and is
dismissed.
----------

(2019)10ILR A 1508

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE PANKAJ BHATIA, J.
2 All. Shiv Vatika Basrat Ghar & Anr. Vs State of U.P. & Ors.
1509
Writ-C No. 37797 of 2018

Shiv Vatika Basrat Ghar & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Arpan Srivastava, Sri Anil Bhushan

Counsel for the Respondents:
C.S.C., Sri Devi Prasad Mishra, Sri A.K.
Mishra, Sri Arun Kumar

A.
Noise
Pollution
(Regulation
and
Control) Rules, 2000 - Directions issued
in Sushil Chandra Srivastava and another
v. State of U.P. and others, Writ-C No.
1216 of 2019 to be strictly followed-no
loudspeaker to be used beyond the
permissible limit under the schedule of
the Rules, 2000.

Writ Petition pending (E-9)

List of Cases Cited: -

1. George of Church of God (Full Gospel) Vs
K.K.R. Majestic Colony Welfare Association &
ors., (2000) 7 SCC 282

2. Sri K. Ramdas Shenoy Vs The Chief Officers,
Town Municipal Council, Udipi & ors.,(1974) 2
SCC 506

3. Machavarapu Srinivasa Rao Vs Vijaywada,
Guntur, Tenli Mangal Giri Urban Development
Authority, (2011) 12 SCC 154

4. R.K. Mittal Vs St. of U.P., (2012) 2 SCC 323

5.
Dipak
Kumar
Mukherjee
Vs
Kolkata
Municipal Corporation & ors., (2013) 5 SCC
336

6. Friends Colony Development Committee Vs
St. of Orissa,(2004) 8 SCC 733

7. Shanti Sports Club & anr. Vs U. of I. &
ors.(2009) 15 SCC 705
8. M.C. Mehta Vs U. of I. & ors., (2004) 6 SCC
588

9. Virender Gaur & ors. Vs St. of Hr. & ors.,
(1995) 2 SCC 577

10. Sushil Chandra Srivastava & anr. Vs St. of
U.P. & ors., Writ-C No. 1216 of (2019)

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J. & Hon'ble Pankaj
Bhatia, J.)

1. The petitioners have preferred this
writ petition for issuance of a writ of
Certiorari to quash the order dated
11.10.2018
passed
by
Allahabad
Development Authority (now Prayagraj
Development Authority)1.

2. Briefly stated the facts are; the
petitioner no. 1 claims to be the owner of
the property - 1, Panna Lal Road,
Allahabad. The area of the aforesaid
property is more than 10000 square
meters. The property is said to be
ancestral property and several families are
residing in the aforesaid property. The
petitioner no. 2 has constructed a
Marriage Hall (Banquet Hall) (for short,
"marriage hall") in an area about 3975.67
square meters which is a part of the
aforesaid property. The petitioner no. 2
runs a Marriage Hall in the name and
style of Shiv Vatika and it is using the
open space of the property for the said
purpose
and
has
raised
temporary
construction for running the guest house.

3.

The
petitioner
made
an
application to the District Magistrate for
registration of the marriage hall. On
30.3.2012
the
District
Magistrate
registered the Guest House/ Marriage Hall
under the provisions of the Sarais Act,
1867
subject
to
certain
conditions
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in the registration certificate. It
is stated that since there is temporary
construction of tin-shade, therefore, there
is no requirement to take any permission
from the Development Authority.

4. The present dispute arose when
the Development Authority issued a show
cause notice dated 9.1.2015 to the
petitioners, wherein it is recorded that the
petitioner is running the marriage hall
contrary to the provisions of Section 16 of
the
U.P.
Urban
Planning
and
Development Act, 19732. It is further
recorded in the show cause notice that on
inspection it was found that the said
property is earmarked for residential
purposes whereas it is being used for
commercial purposes which is punishable
under Section 26 of the Act, 1973. It is
also mentioned in the said notice that
earlier on 29.9.2014 a show cause notice
was issued to the petitioner but he failed
to submit any reply. Thereafter, an order
under Section 26 of the Act, 1973 was
passed on 20.11.2014 and despite this
order the petitioner continued to use the
property for commercial purposes. It is
further mentioned in the notice that in
Public Interest Litigation No. 51055 of
20143 a restrain order has been passed for
using the premises for marriage. The
petitioner has submitted a reply wherein it
is stated that the petitioner is running the
marriage hall in an open area in which
there is no permanent construction and the
approval has also been obtained from the
District Magistrate, Allahabad under the
Sarais Act, 1867. The petitioner has not
brought on the record his reply submitted
to the show cause notice. He has brought
on record a report submitted by the
Lekhpal
and
the
Sub-Divisional
Magistrate, Sadar dated 31.1.2015 that the
petitioner's marriage hall is not on the
land of Chandra Shekhar Azar Park. Both
the reports are on the record. The
petitioner relying on those reports has
averred in the writ petition that from the
said report it is clear that marriage hall is
not situated within the premises of
Chandra Shekhar Azad Park (Company
Garden).

5. The Development Authority again
issued a notice on 28.4.2015 that the use
of property in question for commercial
purposes is contrary to the provisions of
the Section 16 of the Act, 1973. It appears
that in the meantime the petitioner
submitted an application for sanction of
the map on 12.1.2015. After examining
his proposal, his application was rejected
by the Development Authority on the
ground that the land is a park only hence
it cannot be used for running marriage
hall and a direction was also issued that if
the petitioner continues to use the
property for commercial purposes, it shall
be sealed.

6. It appears that the petitioner
continued to use the property for
commercial purposes. The Development
Authority passed an order on 11.10.2018
under Section 28-A of the Act, 1973 and
sealed the premises.

7. By way of a supplementary
affidavit the petitioner has brought on
record a list of marriage halls in the city.
The said list shows that as many as 190
marriage halls are running in the city. The
said
fact
is
unrebutted
by
the
Development Authority.

8. A counter affidavit has been filed
by the Development Authority. The stand
taken in the counter affidavit is that the
petitioner cannot use any land or building
2 All. Shiv Vatika Basrat Ghar & Anr. Vs State of U.P. & Ors.
1511
owned by him for a purpose which is not
in conformity with the Master Plan prepared
by the Development Authority. Under the
Master Plan, the land on which the petitioner
was running a marriage hall, has been
earmarked as park and open space as such its
use as a marriage hall is illegal. Insofar as the
permission granted to the petitioner under the
Sarais Act, 1967, it is stated, does not
authorize the petitioner to run the marriage
hall in contravention with the provisions of
the Act, 1973, Master Plan and the bye-laws
framed under it. The Sarais Act, 1867 does
not authorize him to change the use of land
in development area contrary to its approved
Master Plan. The petitioner no. 2 had
submitted
a
compounding
map
for
regularization of the construction raised in
the property in question for running the
marriage hall in the name of 'Shiv Vatika'.
The compounding map submitted by the
petitioner was rejected by the Development
Authority by its order dated 7.7.2015 on the
ground that the said map was contrary to the
Master Plan as it is earmarked for park and
open space, hence it cannot be used as
marriage hall or banquet hall.

9. It is further averred in the counter
affidavit that even temporary construction over
the land in question amounts to development in
terms of Section 2(e) of the Act, 1973. For any
development work to be carried out in the
developed area, the permission of the
Development Authority under Section 15 of the
Act, 1973 is necessary. Since the permission has
been rejected by the Development Authority
raising temporary construction is illegal and
unauthorized.

10 It is further submitted that the
petitioner has submitted a fresh map on
21.8.2017
after
rejection
of
his
compounding map on 7.7.2015. The said
map has again been rejected by the
Development Authority on 22.11.2017.
The Sarais Act, 1867 only grants licence
to the petitioner to run marriage hall. It
does not exempt him from complying
with the provisions of the Act, 1973. In
view of the said facts it is stated that
action under Section 28-A of the Act,
1973 has been taken after furnishing
sufficient opportunity to the petitioner.

11. In regard to the averments made in
the writ petition the petitioner is paying
Municipal taxes for the property to Nagar
Nigam, Allahabad, it is stated that paying the
tax to Nagar nigam does not mean that the
petitioner has got a commercial map/sanction
from the Development Authority.

12. Learned counsel for the
Development Authority has not disputed
the list submitted by the petitioner which
shows that at present about 200 marriage
halls are running in the city. He has
produced bye-laws which regulate the
banquet hall/ marriage hall. Relevant part
of the bye-laws is extracted below:

v/;k; & 16

^ckjkr ?kj^@ ^mRlo Hkou^ ds fuekZ.k gsrq
vis{kk,a

16-1 vuqeU;rk ckjkr ?kj@ ^mRlo Hkou^ ds
fuekZ.k dh vuqeU;rk egk;kstuk tksfuax jsxqys'kUl ds
vuqlkj gksxhA

16-2 Hkw[k.M dk U;wure 1500
oxZehVj

{ks=Qy

16-3 Hkw[k.M dk U;wure 24 ehVj

QzUVst

16-4 lMd dh U;wure 24 ehVj

foeku pkSMkbZ

16-5 Hkw&vkPNknu 1⁄4d1⁄2 fufeZr@ fodflr {ks=
30 izfr'kr

 1⁄4[k1⁄2 u,@ vfodflr {ks=
40 izfr'kr

16-6 ,Q-,-vkj- 1⁄4d1⁄2 fufeZr@ fodflr {ks=
1-00
1512 INDIAN LAW REPORTS ALLAHABAD SERIES

 1⁄4[k1⁄2 u,@ fodflr {ks=
1-50

16-7 Hkou dh mapkbZ 30 ehVj ls de pkSMs
ekxZ ij fLFkr Hkouksa dh vf/kdre mapkbZ lMd dh
foeku pkSMkbZ rFkk QzUV lsV & cSd ds ;ksx ds Ms<
xquk ls vf/kd ugh gksxh] ijUrq 30 ehVj ,oa mlls
vf/kd pkSMs+ ekxkasZ ij fLFkr Hkoukas gsrq ;g izfrcU/k ykxw
ugh gksxkA Hkou dh vf/kdre mapkbZ lajf{kr Lekjd@
gSjhVst LFky ls nwjh] ,;jiksVZ Quy tksu rFkk vU;
LVsV~;qVjh izfrcU/kksa ls Hkh fu;f+U=r gksxhA

 16-8 lSV cSd ^ ckjkr ?kj^@ ^mRlo
Hkou^ i`Fkdhd`r 1⁄4fMVsPM1⁄2 Hkou ds #i es gksxk rFkk
Hkw[k.M ds {ks=Qy ds vk/kkj ij U;wure lSV&cSd
fuEukuqlkj gksaxs %&

Hkw[k.M dk
{ks=Qy
1⁄4oxZehVj1⁄2
 U;wure lSV & cSd 1⁄4ehVj1⁄2

vxz
i`"B
Ikk'oZ & 1 Ikk'oZ &
2
2000 rd 12.0
4.5
4.5
3.0
2000
ls
vf/kd
12.
5.0
5.0
5.0

16-9 ikfdZax ekud izR;sd 100 oxZehVj ry
{ks=Qy ij 2-0 ^lkeku dkj LFky^ dh O;oLFkk
Hkw[k.M ds vUnj djuh gksxhA ikfdZax dh x.kuk
Hkw[k.M esa vf/kdre vuqeU; ry {ks=Qy ij dh
tk,xhA

16-10 cslesUV cslesUV dh
vuqeU;rk Hkou mifof/k ds izLrj& 3-9 ds vuqlkj
gksxhA

16-11 vuqKk dh izfdz;k ubZ ;kstukvkas@
vuqeksfnr gksus okys ys& vkmV IykUl esa ckjkr
?kj@ mRlo Hkou gsrq fu/kkZfjr ekudksa ds vuqlkj
igys gh visf{kr la[;k esa Hkw[k.Mks dk fpUghdj.k
fd;k tk,xk vkSj ckjkr ?kj ds fuekZ.k dh vuqKk
dsoy bl iz;kstu gsrq fpfUgr@ vkjf{kr Hkw[k.Mksa
ij gh nh tk,xhA foeku fodflr dkyksfu;kas@{ks=ksa
esa vuqKk iznku djus gsrq izLrkfor LFky ds lEcU/k
esa U;wure ,d ekg dh le;kof/k iznku djrs gq,
turk ls vkifRr@ lq>ko mfpr ek/;e ls vkefU=r
fd, tk,axs ,oa muds fuLrkj.k ds mijkUr ekufp=
Lohd`fr@fujLrhdj.k dh dk;Zokgh dh tk,xh rFkk
ckjkr ?kj@ mRlo Hkou vuqeU; fd, tkus ij
vkosnd ls tksfuax jsxqys'kUl ds vk/kkj ij izHkko
'kqYd Hkh fy;k tk,xkA

13. As can be seen, one of the
requirements for marriage hall is the
parking area in 1/3 of the total covered area
of marriage hall. We asked the learned
counsel for the Development Authority that
whether all the marriage halls at present are
running in conformity with the bye-laws
framed by the Development Authority. We
have pointedly asked him to name at least
few marriage halls who have parking in
terms of requirement under the bye-laws. It
is a common experience in this city that
during wedding seasons, in the evening
there is traffic clogging on all the roads
where these Barat Bhars are running.

14.

Learned
counsel
for
the
Development Authority has very fairly
conceded that there is no marriage hall which
has its parking in terms of the bye-laws.

15. Learned counsel for the petitioner
has laid emphasis on the provisions of the
Sarais Act, 1867 to buttress his submission
that since the petitioner's marriage hall is
registered
under
the
Act,
1867
the
Development Authority does not have any
power to take action against the marriage hall.

16. Since we are not adverting to
various issues raised by the petitioners at
this stage, we are referring only relevant
provisions
of
the
Act,
1867.
The
definition of 'Sarai' is as under:

"2. Interpretation-clause.--In this Act,
unless there be something repugnant in the
subject or context,--

"Sarai".
2 All. Shiv Vatika Basrat Ghar & Anr. Vs State of U.P. & Ors.
1513

"Sarai" means any building used for
the
shelter
and
accommodation
of
travellers, and includes, in any case in
which only part of a building is used as a
sarai, the part so used of such building. It
also includes a purao so far as the
provisions of this Act are applicable
thereto.

"Keeper of a Sarai".

"Keeper of a Sarai" includes the
owner and any person having or acting in
the care or management thereof.

4. Registers of Sarais to be kept.--
The Magistrate of the District shall keep a
register in which shall be entered by such
Magistrate or such other person as he
shall appoint in this behalf, the names and
residences of the keepers of all Sarais
within his jurisdiction, and the situation
of every such Sarai. No charge shall be
made for making any such entry.

7. Duties of keepers of Sarais.--The
keeper of a Sarai shall be bound---

(1) when any person in such Sarai is ill
of any infectious or contagious disease, or
dies of such disease, to give immediate notice
thereof to the nearest police-station;

(2) at all times when required by any
Magistrate or any other person duly
authorized by the Magistrate of the
District in this behalf, to give him free
access to the Sarai and allow him to
inspect the same or any part thereof;

(3) to thoroughly cleanse the rooms
and verandahs, and drains of the Sarai
and the wells, tanks, or other sources
from which water is obtained for the
persons or animals using it to the
satisfaction of and so often as shall be
required by, the Magistrate of the
District, or such person as he shall
appoint in this behalf;

(4) to remove all noxious vegetation
on or near the Sarai, and all trees and
branches of tree capable of affording to
thieves means of entering or leaving the
Sarai;

(5) to keep the gates, walls, fences,
roofs and drains of the Sarai in repair;

(6) to provide such number of
watchmen as may, in the opinion of the
Magistrate of the District, subject to such
rules as the State Government may
prescribe in this behalf, be necessary for
the safety and protection of persons and
animals or vehicles lodging in, halting at
or placed in the Sarai; and

(7) to exhibit a list of charges for the
use of the sarai at such place and in such
form and languages as the Magistrate of
the District shall from time to time
direct."

17. Section 9 of the Act, 1867 provides
that if Sarai is not used according to the
provisions of the Act or become in a filthy or
unwholesome state and if two or more of the
neighbours complaint the District Magistrate
regarding the nuisance at sarai the District
Magistrate after the enquiry may cause
notice in writing to the owner of the sarai for
taking appropriate remedial actions. Section14 provides penalty for infringing the Act or
regulations. It shall be treated as an offence
and the owner of the sarai will be liable for
conviction or penalty. Section 15 provides
conviction for third offence to disqualify a
person from keeping sarai.

18. We are amazed that in spite of the
fact that none of the Marriage Halls are
running in conformity with the bye-laws, the
Development Authority has turned blind eyes
to gross violation of law and has left the city at
the mercy of the owners of marriage halls
who have caused immense inconvenience to
the residents of this city.

19. As discussed above, the
Development
Authority
itself
has
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
admitted that haphazard running of a large
number of marriage halls in the city is
causing serious inconvenience to the
residents and clogging of traffic. Learned
counsel for the Development Authority
has produced before us two different sets
of proposed bye-laws one is titled
"Proposed Bye-laws" and the second
"Temporarily Proposed Bye-laws".

20. The salient feature of the
proposed bye-laws are that to avoid the
noise pollution, the directions of the
Supreme Court in the case of George of
Church of God (Full Gospel) v. K.K.R.
Majestic Colony Welfare Association
and others4, dated 30.8.2000 shall be
complied with. The minimum area for
sanctioning the map for construction of
marriage halls shall be 1500 square
meters. The minimum frontage shall be
18 meters. Marriage hall shall be at
minimum 18 meters wide road. The
covered area 30% in the developed area
and in the new/ undeveloped area 40%,
FAR
in
the
developed
area
1.00,
undeveloped 1.50, 2.0 equal car space on
every 100 square meter covered area. The
salient features of the byelaws read as
under:

Proposed Byelaws

nwjLFk {ks=ksa 1⁄4uxj fuxe dh lhek ls ckgj1⁄2 esa
^ckjkr

?kj*@^mRlo Hkou* ds fuekZ.k@lapkyu gsrq
vis{kk,a&

ckjkr ?kj ds lapkyu gsrq cM+s Hkw[k.M dh
vis{kk gksrh gS ,oa okgu ikfdZx] lM+d tke bR;kfn
dh leL;k Hkh mRiUu gksrh gSA uxj ds vUnj fLFkr
ckjkr ?kjksa ls izk;% tu&lkekU; dks ,oa ckjkr ?kj
ds fudV ds fuokfl;ksa dks vlqfo/kk Hkh gksrh gSA
mDr ds n`f"Vxr ckjkr ?kj lapkyu dh vuqefr
uxj fuxe lhek {ks= ds ckgj fLFkr {ks=ksa esa iznku
fd;k tk;A mDr nwjLFk {ks=ksa esa Hkwfe dh miyC/krk
Hkh vf/kd gS ,oa lM+dks ij tke bR;kfn dh leL;k
Hkh de gSA vr,o ckjkr ?kjksa@mRlo Hkouksa dh
vuqefr uxj fuxe lhek {ks= ds ckgj fLFkr {ks=ksa eas
fuEufyf[kr izfrcU/kksa ds lkFk iznku fd;k tk;&

1- vuqeU;rk ^ckjkr ?kj*@mRlo Hkou* ds
fuekZ.k dh vuqeU;rk egk;kstuk tksfuax jsxqys'kUl ds
vuqlkj gksxhA

2- ek0 loksZPp U;k;ky; }kjk ppZ vkQ xkWM
1⁄4Qqy xklfiy1⁄2 cuke ds-ds-vkj- esftfLVd dkyksuh
osyQs;j ,'kksfl,'ku esa ikfjr vkns'k fnuakd 30-082000 esa Li"V fd;k tk pqdk gS fd /ouh iznw"k.k ds
ekudksa dk vuqikyu fd;k tkuk ck/;dkjh gS ,oa
jk=h 10%00 cts ls ysdj izkr% 06%00 cts rd
ykmMLihdj dk iz;ksx iw.kZr% oftZr gSA vr,o
ckjkr ?kj lapkydkas dks iznw"k.k fu;a=.k foHkkx }kjk
fu/kkZfjr /ouh iznw"k.k ds ekudksa dk vfuok;Z :i ls
vuqikyu djuk gksxk ,oa jk=h ds 10%00 cts ls izkr%
06%00 cts rd ykmMLihdj@Mh-ts- bR;kfn dk
mi;ksx iw.kZr% oftZr jgsxkA

3- ckjkr ?kj ds lapkydksa dks cqfdax djkus
okys O;fDr;ksa ls cqfdax ls iwoZ bl vk'k; dk 'kiFk
i= izkIr djuk gksxk fd ckjkr ?kj esa 100 eh0
vf/kd nwj ls ckjkr ugha vk;sxh ,oa ckjkr foeku
lM+d dh pkSM+kbZ ds vf/kdre ,d pkSFkkbZ Hkkx esa
O;ofLFkr :i ls fudkyh tk;sxh] ftlls fd
tu&lkekU; dks vkokxeu esa dksbZ vlqfo/kk u gks]
bldk mYya?ku djus dh fLFkfr esa cqfdax djkus okys
O;fDr ,oa vU; lEcfU/kr O;fDr;ksa ds fo:)
oS/kkfud dk;Zokgh dh tk;sxhA

4- Hkw[k.M dk {ks=Qy U;wure 1500
oxZehVj

5- Hkw[k.M dk QzUVst U;wure 18 ehVj

6- lM+d dh foeku U;wure 18 ehVj
pkSM+kbZ

7- Hkw&vkPNknu
1⁄4d1⁄2 fufeZr@fodflr {ks= 30 izfr'kr

1⁄4[k1⁄2 u,@vfodflr {ks= 40 izfr'kr

8- ,Q-,-vkj-
1⁄4d1⁄2 fufeZr@fodflr {ks= 1-00

1⁄4[k1⁄2 u,@vfodflr {ks= 1-50

9- Hkou dh Å¡pkbZ 30 ehVj ls de pkSM+s
ekxZ ij fLFkr Hkouksa dh vf/kdre Å¡pkbZ lM+d dh
foeku pkSM+kbZ rFkk QzUV lsV&cSd ds ;ksx ds Ms<+
xquk ls vf/kd ugh gksxh] ijUrq 30 ehVj ,oa mlls
2 All. Shiv Vatika Basrat Ghar & Anr. Vs State of U.P. & Ors.
1515
vf/kd pkSM+s ekxksZa ij fLFkr Hkouksa gsrq ;g izfrcU/k
ykxw ugha gksxkA Hkou dh vf/kdre Å¡pkbZ lajf{kr
Lekjd@gSfjVst LFky ls nwjh] ,;jiksVZ Quy tksu
rFkk vU; LVsV~;qVjh izfrcU/kksa ls Hkh fu;fU=r gksxhA

10- lSV cSd ^ckjkr ?kj*@^mRlo Hkou*
i`Fkdhd`r 1⁄4fMVsPM1⁄2 Hkou ds :i esa gksxk rFkk Hkw[k.M
ds {ks=Qy ds vk/kkj ij U;wure lSV&cSd
fu;ekuqlkj gksxsa%&

Hkw[k.M dk {ks=Qy
1⁄4oxZehVj1⁄2
U;wure lSV&cSd 1⁄4ehVj1⁄2

vxz
i`"B ik'oZ&1
ik'oZ&2
2000 rd
12.0
4.5
4.5
3.0
2000 ls vf/kd
12.0
5.0
5.0
5.0

11- ikfdZax ekud izR;sd 100 oxZehVj ry
{ks=Qy ij 2-0 ^leku dkj LFky* dh O;oLFkk
Hkw[k.M ds vUnj djuh gksxh A ikfdZax dh x.kuk
Hkw[k.M esa vf/kdre vuqeU; ry {ks=Qy ij dh
tk,xhA mDr ds vfrfjDr ;g Hkh izfrcU/k gksxk fd
Hkw[k.M ds lEiw.kZ {ks=Qy dk U;wure ,d&pkSFkkbZ
Hkkx okgu ikfdZax gsrq vkjf{kr jgsxk] ftl ij dksbZ
vU; xfrfof/k vuqeU; ugha gksxh

12- cslesaV cslesUV dh vuqekU;rk Hkou
mifof/k ds izLrj&3-9 ds vuqlkj gksxhA

13- vuqKk dh izfdz;k ubZ ;kstukvksa@
vuqeksfnr gksus okys ys&vkmV IykUl esa ckjkr ?kj@
mRlo Hkou gsrq fu/kkZfjr ekudksa ds vuqlkj igys gh
visf{kr la[;k esa Hkw[k.Mkas dk fpUghdj.k fd;k
tk,xk vkSj ckjkr ?kj ds fuekZ.k dh vuqKk dsoy
bl iz;kstu gsrq fpfUgr@vkjf{kr Hkw[k.Mksa ij gh nh
tk,xhA foeku fodflr dkyksfu;ksa@{ks=ksa esa vuqKk
iznku djus gsrq izLrkfor LFky ds lEcU/k esa U;wure
,d ekg dh le;kfof/k iznku djrs gq, turk ls
vkifRr@lq>ko mfpr ek/;e ls vkefU=r fd;s
tka,xs ,oa muds fuLrkj.k ds mijkUr ekufp=
Lohd`fr@fujLrhdj.k dh dk;Zokgh dh tk,xh rFkk
ckjkr ?kj@mRlo Hkou vuqeU; fd;s tkus ij
vkosnd ls tksfuax jsxqys'kUl ds vk/kkj ij izHkko
'kqYd Hkh fy;k tk,xkA

Temporarily Proposed Byelaws

mifof/k ykxw gksus dh frfFk ls vLFkk;h :i ls
ek= nks o"kksZa dh vof/k rd uxj fuxe dh
lhekUrxZr
^ckjkr
?kj*@^mRlo
Hkou*
ds
fuekZ.k@lapkyu gsrq vis{kk,a&

ckjkr ?kj ds lapkyu gsrq cM+s Hkw[k.M dh
vis{kk gksrh gS ,oa okgu ikfdaZx] lM+d tke bR;kfn
dh leL;k Hkh mRiUu gksrh gSA uxj ds vUnj fLFkr
ckjkr ?kjksa ls izk;% tu&lkekU; dks ,oa ckjkr ?kj
ds fudV ds fuokfl;ksa dks vlqfo/kk Hkh gksrh gSA
mDr ds n`f"Vxr ckjkr ?kj lapkyu dh vuqefr
uxj fuxe lhek {ks= ds ckgj fLFkr {ks=ksa esa iznku
dh tk;sxhA orZeku esa vf/kdka'k ckjkr ?kj uxj
fuxe lhek ds vUrxZr fLFkr gS vr,o bl mifof/k
ds ykxw gksus ls 2 o"kksZa dk le; ckjkr ?kjksa dks uxj
fuxe lhek {ks= ds ckgj LFkkukUrfjr gksus ds fy;s
iznku fd;k tk;sxkA mifof/k ykxw gksus ls] vLFkk;h
:i ls] ek= 2 o"kksZa dh vof/k rd uxj fuxe
lhekUrxZr fLFkr ckjkr ?kjksa dks fuEu izfrcU/kksa ds
lkFk lapkyu dh vuqefr iznku dh tk;sxhA

1- vuqeU;rk ^ckjkr ?kj*@mRlo Hkou ds
fuekZ.k dh vuqeU;rk egk;kstuk tksfuax jsxqys'kUl ds
vuqlkj gksxhA

2- ek0 loksZPp U;k;ky; }kjk ppZ vkQ xkWM 1⁄4Qqy
xklfiy1⁄2 cuke ds-ds-vkj-esftfLVd dkyksuh osyQs;j
,'kksfl,'ku esa ikfjr vkns'k fnukad 30-08-2000 esa Li"V
fd;k tk pqdk gS fd /ouh iznw"k.k ds ekudksa dk
vuqikyu fd;k tkuk ck/;dkjh gS ,oa jk=h 10-00 cts
ls ysdj izkr% 06%00 cts rd ykmMLihdj dk iz;ksx
iw.kZr% oftZr gSA vr,o ckjkr ?kj lapkykdksa dks iznw"k.k
fu;a=.k foHkkx }kjk fu/kkZfjr /ouh iznw"k.k ds ekudkas dk
vfuok;Z :i ls vuqikyu djuk gksxk ,oa jk=h ds 10%00
cts ls izkr% 06-00 cts rd ykmMLihdj@Mh-ts- bR;kfn
dk mi;ksx iw.kZr% oftZr jgsxkA

3- ckjkr ?kj ds lapkykdksa dks cqfdax djkus
okys O;fDr;ksa ls cqfdax ls iwoZ bl vk'k; dk 'kiFk
i= izkIr djuk gksxk fd ckjkr ?kj esa 100 eh0
vf/kd nwj ls ckjkr ugha vk;sxh ,oa ckjkr foeku
lM+d dh pkSM+kbZ ds vf/kdre ,d pkSFkkbZ Hkkx esa
O;ofLFkr :i ls fudkyh tk;sxh] ftlls fd
tu&lkekU; dks vkokxeu esa dksbZ vlqfo/kk u gks]
bldk mYya?ku djus dh fLFkfr esa cqfdax djkus okys
O;fDr ,oa vU; lEcfU/kr O;fDr;ksa ds fo:)
oS/kkfud dk;Zokgh dh tk;sxhA

4- Hkw[k.M dk {ks=Qy U;wure 600
oxZehVj

5- Hkw[k.M dk QzUVst U;wure 10 ehVj

6- lM+d dh foeku pkSM+kbZ U;wure 12 ehVj

7- Hkw&vkPNknu
1⁄4d1⁄2 fufeZr@fodflr {ks= 30 izfr'kr
1516 INDIAN LAW REPORTS ALLAHABAD SERIES
1⁄4[k1⁄2 u,@vfodflr {ks= 40 izfr'kr

-8 ,Q-,-vkj-
1⁄4d1⁄2 fufeZr@fodflr {ks= 1-00

1⁄4[k1⁄2 u,@vfodflr {ks= 1-50

9- Hkou dh ÅWpkbZ 30 ehVj
ls de pkSMs+ ekxZ ij fLFkr Hkouksa dh vf/kdre
ÅWpkbZ lM+d dh foeku pkSM+kbZ rFkk QzUV lsV&cSd
ds ;ksx ds Ms<+ xquk ls vf/kd ugha gksxh] ijUrq 30
ehVj ,oa mlls vf/kd pkSM+s ekxksaZ ij fLFkr Hkouksa
gsrq ;g izfrcU/k ykxw ugha gksxkA Hkou dh vf/kdre
ÅWpkbZ lajf{kr Lekjd@gSjhVsM LFky ls nwjh]
,;jiksVZ Quy tksu rFkk vU; LVsV~;qVjh izfrcU/kksa ls
Hkh fu;fU=r gksxhA

10- lSV cSd ^ckjkr
?kj*@^mRlo Hkou* i`Fkdhd`r 1⁄4fMVsPM1⁄2 Hkou ds :i
esa gksxk rFkk Hkw[k.M ds {ks=Qy ds vk/kkj ij
U;wure lSV&cSd fu;ekuqlkj gksaxs%&

Hkw[k.M dk
{ks=Qy
1⁄4oxZehVj1⁄2
U;wure lSV&cSd 1⁄4ehVj1⁄2
vxz
i`"B
Ik'oZ
&1
Ik'oZ&2
2000 rd 04-0 1-5
1-5
1-0
2000
ls
vf/kd
12-0
5-0
5-0
5-0

11- ikfdZax ekud izR;sd 100 oxZehVj
ry {ks=Qy ij 2-0 ^leku dkj LFky* dh O;oLFkk
Hkw[k.M ds vUnj djuh gksxhA ikfdZax dh x.kuk
Hkw[k.M esa vf/kdre vuqeU; ry {ks=Qy ij dh
tk,xhA mDr ds vfrfjDr ;g Hkh izfrcU/k gksxk fd
Hkw[k.M ds lEiw.kZ {ks=Qy dk U;wure ,d&pkSFkkbZ
Hkkx okgu ikfdZax gsrq vkjf{kr jgsxk] ftl ij dksbZ
vU; xfrfof/k vuqeU; ugha gksxhA

12- cslesaV cslesUV dh vuqekU;rk Hkou
mifof/k ds izLrj&3-9 ds vuqlkj gksxhA

13- vuqKk dh izfdz;k ubZ
;kstukvksa@vuqeksfnr gksus okys ys&vkmV IykUl esa
ckjkr ?kj@mRlo Hkou gsrq fu/kkZfjr ekudks ds
vuqlkj igys gh visf{kr la[;k esa Hkw[k.Mksa dk
fpUghdj.k fd;k tk,xk vkSj ckjkr ?kj ds fuekZ.k
dh vuqKk dsoy bl iz;kstu gsrq fpfUgr@vkjf{kr
Hkw[k.Mksa ij gh nh tk,xhA foeku fodflr
dkyksfu;ksa@{ks=ksa esa vuqKk iznku djus gsrq izLrkfor
LFky ds lEcU/k esa U;wure ,d ekg dh le;kfof/k
iznku djrs gq, turk ls vkifRr@lq>ko mfpr
ek/;e ls vkefU=r fd;s tk,axs ,oa muds fuLrkj.k
ds mijkUr ekufp= Lohd`fr@fujLrhdj.k dh
dk;Zokgh dh tk,xh rFkk ckjkr ?kj@ mRlo Hkou
vuqeU; fd;s tkus ij vkosnd ls tksfuax jsxqys'kUl
ds vk/kkj ij izHkko 'kqYd Hkh fy;k tk,xkA

21. During the course of hearing,
learned counsel for the Development
Authority has produced the Master Plan
before us. In respect of the zonal plan of
the city, learned counsel has made a
statement that so far only one zonal plan
has been prepared for Civil Lines and the
adjoining area.

22. Regard being had to the fact that
the Master Plan of the city was published
on 13.7.2006 and the zonal development
plan could be prepared of only one subzone i.e. B-4 on 7.3.2011 which was
enforced from 18.3.2011. It is amazing
that after 19 years of enforcement of
Master Plan the zonal plan for entire city
is yet to be made except one area.

23. It is apposite to refer the
statutory
provisions
which
regulate
development of the area. The State
Government enacted the U.P. Urban
Planning and Development Act, 1973
with the object of planned development of
the developed area.

24. Chapter-II of the Act, 1973 deals
with the Development Authority and its
objects. Section-3 deals with declaration of the
development areas; Section-4 provides that
the State Government may constitute a
Development Authority for any development
area. Chapter-III deals with the Master Plan
and Zonal Development Plan. A Master Plan
is prepared by the experts keeping future
2 All. Shiv Vatika Basrat Ghar & Anr. Vs State of U.P. & Ors.
1517
needs in the view. Section-8 of the Act, 1973
reads as under:

"8. Civil survey of, and master plan
for the development area.--(1) The
Authority shall as soon as may be,
prepare
a
master
plan
for
the
development area.

(2) The master plan shall

(a) define the various zones into
which the development area may be
divided for the purposes of development
and indicate the manner in which the land
in each zone is proposed to be used
(whether by the carrying out thereon of
development or otherwise) and the stages
by which any such development shall be
carried out; and

(b) serve as a basic pattern of
framework
within
which
the
zonal
development plans of the various zones
may be prepared.

(3) The master plan may provide for
any other matter which may be necessary
for the proper development of the
development area."

25. Section-9 deals with Zonal
Development Plans. As the Master Plan
requires that the developed area be
divided
in various
zones.
Relevant
provision of Section-9 reads as under:

"9. Zonal Development Plans.-

(1)
Simultaneously
with
the
preparation of the master plan or as soon
as may be thereafter, the Authority shall
proceed with the preparation of a zonal
development plan for each of the zones
into which the development area may be
divided.

(2) A zonal development plan may---

(a) contain a site-plan and use-plan
for the development of the zone and show
the approximate locations and extents of
land uses proposed in the zone for such
things as public buildings and other
public works and utilities, roads, housing,
recreation, industry, business, markets,
schools, hospitals and public and private
open spaces and other categories of
public and private uses;

(b)
specify
the
standards
of
population density and building density;

(c) ... ... ...
(d) In particular, contain provisions
regarding all or any of the following
matters, namely-

(i) ... ... ...

(ii) the allotment or reservation of
land for roads, open spaces, gardens,
recreation-grounds, schools, markets and
other public purposes;
(iii) the development of any area into a
township or colony and the restrictions
and conditions subject to which such
development may be undertaken or
carried out;
(iv) the erection of buildings on any site
and the restrictions and conditions in
regard to the open spaces to be
maintained in or around buildings and
height and character of buildings:

(v) ... ... ...

(vi) ... ... ...

(vii) ... ... ...

(viii) ... ... ...

(ix) the prohibitions or restrictions
regarding erection of shops, work-shops,
warehouses of factories or buildings of a
specified
architectural
feature
or
buildings
designed
for
particular
purposes in the locality,

(x) ... ... ...

(xi) the restrictions regarding the use
of any site for purposes other than
erection of buildings;

(xii) any other matter which is
necessary for the proper development of
the zone or any area thereof according to
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
plan and for preventing buildings being
erected haphazardly, in such zone or
area."

26. Chapter-IV of the Act, 1973
deals with the amendment of Master Plan
and the Zonal Plan. Sub-sections (1) and
(2) of Section-13 of the Act, 1973 provide
that
the
Authority
can
make
the
amendment which does not affect the
character of plan and the extent of land
use or the standard of population density.
Sub-section (2) of Section-13 empowers
the State Government to make the
amendment in the Master Plan. Subsections (3), (4), (5), (6) and (7) of
Section 13 of the Act, 1973 lays down the
procedure for the amendment in the
Master Plan. Chapter-V of the Act, 1973
deals with the development of lands.
Section 14 requires that in the area which
has been declared as development area
under Section 3, no development shall be
undertaken
or
carried
out
without
permission in writing from the Vice
Chairman. Section 15 of the Act, 1973
deals with the application for permission.
Sub-section 5 of Section 15 of the Act,
1973 provide that if the permission is
refused, the aggrieved person may appeal
to the Chairman against the said order.
Section 16 of the Act, 1973 prohibits use
of land and building in contravention with
the plan. Section 26 lays down the
penalties and development is undertaken
or carries out in contravention of the
Master Plan or Zonal Development Plan
or without the permission, approval or
sanction under Section 14 of the Act,
1973. Sub-section (2) of Section 26
provides that if any person contravenes
the provisions of Section 16 or the
condition prescribed by the Regulations
shall be punishable with the fine which
may extend to Rs. 25000/- and in case of
continuing
offence
Rs.
1250/-
for
everyday. Sub-section (3) of Section 26
further provides that the said act shall be
punishable with the imprisonment for a
term which may extend to six months or
with fine.

27. Section 28-A of the Act, 1973
has been inserted by U.P. Act No. 3 of
1997 which reads as under:

"28-A. Power to seal unauthorised
development: ---(1) It shall be lawful for the
Vice-Chairman or an officer empowered by
him in the behalf, as the case may be, at any
time before or after making an order for the
removal
or
discontinuance
of
any
development under Section 27 or Section 28
to make any order directing the sealing of
such development in a development area in
such manner as may be prescribed for the
purposes of carrying out the provisions of
this Act.

(2) Where any development has been
scaled, the Vice-Chairman or the officer
empowered by him in this behalf, as the
case may be, for purpose of removing or
discontinuing such development order the
seal be removed.

(3) No person shall remove such seal
except under an order made under subsection (2) by the Vice-Chairman, or the
officer empowered by him in this behalf.

(4) Any person aggrieved by an
order made under sub-section (1) or subsection (2) may appeal to the Chairman
against that order within thirty days from
the date thereof and the Chairman may
after hearing the parties to the appeal,
either allow or dismiss the appeal.

(5) The decision of the Chairman
shall be final."

28.

The
aforesaid
statutory
provisions clearly demonstrate that the
2 All. Shiv Vatika Basrat Ghar & Anr. Vs State of U.P. & Ors.
1519
Development Authority has ample power
to
get
its
bye-laws
implemented
effectively but no action has been taken
by
the
Development
Authority
for
compliance of its bye-laws dealing with
marriage halls and most of the marriage
halls are running in blatant violation of
bye-laws.

29. As noticed above, in the city
there are 200 marriage halls in Allahabad.
It is an admitted case of the Development
Authority that none of the marriage halls
are in conformity with the bye-laws made
by Prayagraj Development Authority. It is
also
admitted
at
the
bar
by
the
Development Authority that the area
earmarked for underground parking is not
available in any of the marriage halls. It is
evident from the aforesaid facts that the
bye-laws have been completely breached
by marriage hall owners with impunity.

30. It is a trite law that it is duty of
the Court to enforce performance of the
statutory obligation by the statutory
authorities and tax payers have a legal
right to demand compliance of law and
the statutory provisions which have been
made for the benefit of the residents of
locality. The Supreme Court in the case of
Sri K. Ramdas Shenoy v. The Chief
Officers, Town Municipal Council,
Udipi and others5, has observed that
"there
is
special
interest
in
the
performance of the duty. All the residents
in the area have their interest in the
performance of the duty. The special and
substantial interest of the residents in the
area are injured by all the illegal
constructions.

31. In the case of Sri K. Ramdas
Shenoy (supra) the Municipal Committee
had approved construction of a cinema
hall on the ground that the site was
earmarked for construction of lecture hall.
The High Court declined to quash the
resolution on the ground that cinema hall
owner has spent huge amount. The matter
went to the Supreme Court which set
aside the judgment of the High Court and
held that "the rights of the residents in the
area are invaded by an illegal construction
of a cinema hall building. It has to be
remembered that a scheme in residential
area
means
planned
orderliness
in
accordance with the requirement of the
residents. If the scheme is nullified by
arbitrary acts in excess and derogation of
the power of the municipality, the Court
will
quash
the
order
passed
by
municipalities in such cases.

32. In the case of Machavarapu
Srinivasa Rao v. Vijaywada, Guntur,
Tenli Mangal Giri Urban Development
Authority6, the Supreme Court has
observed that the Master Plan or Zonal
Development Plan is approved by the
State
Government.
After
they
are
finalized even the State Government /
Development Authority cannot use the
land for any purpose other than specified
therein except by amendment in Master
Plan. In the case of R.K. Mittal v. State
of U.P.7, the Court has considered the
provisions of the U.P. Urban Planning and
Land Development Act, 1973 and has
held that "the Master Plan and the Zonal
Plan specified the user as a residential
and, therefore, those plots cannot be used
for other purposes. The plans have a
binding effect in law. If the scheme /
master plan is being nullified by an
arbitrary act in excess and derogation of
power of the Development Authority
under law, the Court will intervene and
would direct such authority to take
appropriate
action
and
whenever
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary even quash the orders of the
Development Authority". The Court has
further held that the convenience of the
residents and ecological impact are
relevant considerations for the Courts
while deciding such issues. It is held that
the law imposes an obligation upon the
Development Authority to strictly adhere
to the plan, regulations and the provisions
of the Act thus it cannot ignore its
fundamental
duty
by
doing
acts
impermissible in law.

33.