# 15 (ADDL.) S.C.R. 877 R.K. MITTAL & ORS v. STATE OF UTIAR PRADESH & ORS

- **Citation:** [2011] 15 S.C.R. 877
- **Court:** Supreme Court of India
- **Decided:** 2011-12-05
- **Case number:** CIVIL APPEAL NO. 6962 OF 2005
- **Bench:** Swatanter Kumar, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-877-r-k-mittal-ors-v-state-of-utiar-pradesh-ors-27388
- **Pages:** 50

## Headnote

Town Planning - Change of user of land - Permissibility
A
B
- Power of New Okhla Industrial Development Authority to
permit users, other than residential, in the sectors specifically C
earmarked for 'residential use' in the Master Plan of the New
Okhla Industrial Development Area - Ambit and scope of -
Held: A decision sought to be taken by the Development
Authority in the garb of a policy decision matter, if not in
conformity to the Master Plan, the Regulations and provisions
D
of the Act in force, would be an action extra }us -
The
Development Authority or its officers, have no power to vary
the user and spaces prescribed in the Master Plan, except
by amending the relevant laws and that too, for a proper object
and purpose -
In the present case, the action of the E
Development Authority in permitting mixed user was in
apparent violation of the statutory provisions in the Master
Plan - Establishment of banks and nursing homes in the
residential sectors meant for residential use alone was
unequivocal violation of the statutory provisions in the Master F
Plan - No power was vested in the Development Authority to
permit such user and ignore the misuse for such a Jong
period - All the cases where banks, nursing homes or any
commercial activity was being carried on, particularly like the
appellants' case, where a bank and company were running
G
their offices in the residential sectors amounted to change of
user and was thus impermissible - The lessees, who changed
the user contrary to law, are liable to be proceeded against
as per the terms of the lease deed and the provisions of the
877
H
878
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Act - U.P. Industrial Area Development Act, 1976 - New Okhla
Industrial Development Area (Preparation and Finalization of
Plan) Regulations, 1991 -
The New Okhla Industrial
Development Area Building Regulations and Directions,
2006.
B
The ambit and scope of. the power of New Okhla
Industrial Development Authority to permit users, other
than residential, in the sectors specifically earmarked for
'residential use' in the Master Plan of the New Okhla
C Industrial Development Area was the· basic issue in the
instant appeals.
The question that arose for consideration of the
Court was whether the residential premises can be,
wholly or partly, used by the original allottee or even its
D transferee, for any purpose other than residential.
Disposing of the appeals, the Court
HELD: 1.1. The change of user, in the case in hand,
has to be seen in light of the Master Plan, the New Okhla
E Industrial Development Area
(Preparation and
Finalization of Plan) Regulations, 1991and the provisions
of the U.P. Industrial Area Development Act, 1976. The
legislative purpose that emerges from the sc'ieme of the
Act and other relevant provisions is to keep 1 residential
F building separate from commercial and other buildings.
This would necessarily imply that the jurisdiction of the
Development Authority to permit different user in violation
of this statute and the Regulations is not contemplated
in law. In the present case, the change in user of the
G building was violative not only of the New Okhla Industrial
Development Area (Preparation and Finalization of Plan)
Regulations, 1991, byelaws and the provisions of the U.P.
Industrial Area Development Act, 1976, but was also
contrary to the law governing erection of the building.
H
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 879
& ORS.
[Paras 16 and 23] [903-C-E; 905-F-H]
Hari Rao v. N. Govindachari & Ors. (2005) 7 SCC 643:
2005 (3) Suppl. SCR 217 and Dev Brat Sharma v. Jagjit
Mehta (1990) Supp. SCC 724 - held inapplicable.
A
2. The development Plan has to be prepared in 8
accordance with the provisions of the Act and the
Regulations framed thereunder. The notified development
Plan has a legal sanction and provisions contained
therein are mandatory in nature. They are incapable of
being altered or varied without following the due process C
prescribed in law. [Para 25]

## Text

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(2011] 15 (ADDL.) S.C.R. 877
R.K. MITTAL & ORS.
v.
STATE OF UTIAR PRADESH & ORS.
(CIVIL APPEAL NO. 6962 OF 2005)
DECEMBER 05, 2011
[SWATANTER KUMAR AND
RANJANA PRAKASH DESAI, JJ.]
Town Planning - Change of user of land - Permissibility
A
B
- Power of New Okhla Industrial Development Authority to
permit users, other than residential, in the sectors specifically C
earmarked for 'residential use' in the Master Plan of the New
Okhla Industrial Development Area - Ambit and scope of -
Held: A decision sought to be taken by the Development
Authority in the garb of a policy decision matter, if not in
conformity to the Master Plan, the Regulations and provisions
D
of the Act in force, would be an action extra }us -
The
Development Authority or its officers, have no power to vary
the user and spaces prescribed in the Master Plan, except
by amending the relevant laws and that too, for a proper object
and purpose -
In the present case, the action of the E
Development Authority in permitting mixed user was in
apparent violation of the statutory provisions in the Master
Plan - Establishment of banks and nursing homes in the
residential sectors meant for residential use alone was
unequivocal violation of the statutory provisions in the Master F
Plan - No power was vested in the Development Authority to
permit such user and ignore the misuse for such a Jong
period - All the cases where banks, nursing homes or any
commercial activity was being carried on, particularly like the
appellants' case, where a bank and company were running
G
their offices in the residential sectors amounted to change of
user and was thus impermissible - The lessees, who changed
the user contrary to law, are liable to be proceeded against
as per the terms of the lease deed and the provisions of the
877
H
878
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Act - U.P. Industrial Area Development Act, 1976 - New Okhla
Industrial Development Area (Preparation and Finalization of
Plan) Regulations, 1991 -
The New Okhla Industrial
Development Area Building Regulations and Directions,
2006.
B
The ambit and scope of. the power of New Okhla
Industrial Development Authority to permit users, other
than residential, in the sectors specifically earmarked for
'residential use' in the Master Plan of the New Okhla
C Industrial Development Area was the· basic issue in the
instant appeals.
The question that arose for consideration of the
Court was whether the residential premises can be,
wholly or partly, used by the original allottee or even its
D transferee, for any purpose other than residential.
Disposing of the appeals, the Court
HELD: 1.1. The change of user, in the case in hand,
has to be seen in light of the Master Plan, the New Okhla
E Industrial Development Area
(Preparation and
Finalization of Plan) Regulations, 1991and the provisions
of the U.P. Industrial Area Development Act, 1976. The
legislative purpose that emerges from the sc'ieme of the
Act and other relevant provisions is to keep 1 residential
F building separate from commercial and other buildings.
This would necessarily imply that the jurisdiction of the
Development Authority to permit different user in violation
of this statute and the Regulations is not contemplated
in law. In the present case, the change in user of the
G building was violative not only of the New Okhla Industrial
Development Area (Preparation and Finalization of Plan)
Regulations, 1991, byelaws and the provisions of the U.P.
Industrial Area Development Act, 1976, but was also
contrary to the law governing erection of the building.
H
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 879
& ORS.
[Paras 16 and 23] [903-C-E; 905-F-H]
Hari Rao v. N. Govindachari & Ors. (2005) 7 SCC 643:
2005 (3) Suppl. SCR 217 and Dev Brat Sharma v. Jagjit
Mehta (1990) Supp. SCC 724 - held inapplicable.
A
2. The development Plan has to be prepared in 8
accordance with the provisions of the Act and the
Regulations framed thereunder. The notified development
Plan has a legal sanction and provisions contained
therein are mandatory in nature. They are incapable of
being altered or varied without following the due process C
prescribed in law. [Para 25] [907-F-H; 908-A-B]
NO/DA Entrepreneurs Association v. NO/DA & Ors.
(2011) 6 SCC 527 and NDMC & Ors. v. Tanvi Trading and
Credit Private Limited and Ors. (2008) 8 SCC 765: 2008 (12) D
SCR 867 - relied on.
3. The development Plan prepared in accordance
with the Regulations take the statutory colour in terms of
Section 6(2)(b) of the Act and, therefore, its alteration by E
an executive order would be impermissible. Even when
a Master Plan is to be amended, the entire prescribed
procedure must be followed. The power to amend should
be exercised only in consonance with the settled norms
without going beyond the original power of the
Development Authority to make such Plan in accordance
F
with the provisions of the Act. The power to amend
cannot be used to frustrate the provisions of the statute.
Regulations, being subordinate legislation must fall in
line with the principal provisions of the Act and in no way
should be detrimental to the provisions and the legislative G
scheme of the Act. [Para 26] [908-D-F]
4. The land cannot be permitted to be used contrary
to the stipulated user except by amendment of Master
Plan, after due consideration of the provisions of the Act H
880
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A and the Rules. Inaction by the Government authorities
means permitting the unauthorized use, contrary to law.
The authorities while reconsidering such matters arti
expected to act reasonably and cautiously. They deal
with larger public interest and, therefore, have a
s responsibility to act with greater degree of sensitivity and
proper application of mind. If the Development Authority
aids the violation of the statutory provisions, it will be a
perversity in the discharge of statutory obligations on the
part of the Development Authority. The public interest, as
c codified in the statutory regulations and the provisions
of the Act, should control the conduct of the Development
Authority and its decision making process, rather than
popular public demand guiding the exercise of its
discretion, that too, in a somewhat arbitrary manner.
D [Paras 27, 28] [908-H; 909-A-D]
5. The power given to the Authority has to be
construed in strict terms and it cannot be exercised in a
manner which will run contrary to the scheme of the Act
and which would defeat the very object of the Act and the
E Regulations. The jurisdiction of the Development
Authority has to be seen on the touchstone of proper
exercise of power within its legal limitations while giving
full effect to the statutory provisions. [Paras 29, 30] [91 OF-HJ
F
6. It is not merely at the discretion of the
Development Authority concerned to designate user of
a site and then alter the same without following due
process of law. Even where such an exercise is required
G to be undertaken by the Development Authority, there
also it is expected of the Development Authority to act for
the betterment of the public and strictly in .::ccordance
with the Plans and the statutory provisions. It cannot take
recourse to its powers and use its discretion contrary to
such provisions and that too, to frustrate the very object
H of the Act. Exercise of power ought not to be destructive
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 881
& ORS.
of the provisions of the Act and the Plans, having the
A
force of law. Even where the requisite prescribed
procedure is followed, still the discretion should be
exercised sparingly for achieving the object of the statute
and not to completely vary or destruct the purpose for
which the sector has been earmarked. [Para 33] [912-EB
H]
MC. Mehta v. Union of India & Ors. (2004) 6 SCC 588:
2004 (2) Suppl. SCR 504; Bangalore Medical "Trust v. B.S.
Mudappa & Ors. (1991) 4 SCC 54: 1991 (3) SCR 102; S.N.
Chandrashekar & Anr. v. State of Kamataka & Ors. (2006) 3 C
sec 208 : 2006 (1) SCR 1039; ITC Ltd. v. State of Uttar
Pradesh & Ors. (2011) 7 SCC 493 and Dr. G.N. Khajuria &
Ors. v. Delhi Development Authority & Ors. (1995) 5 SCC
762: 1995 (3) Suppl. SCR 212- relied on.
7. A decision which is sought to be taken by the
Development Authority in the garb of a policy decision
matter, if not in conformity to the Master Plan, the
Regulations and provisions of the Act in force, would be
D
an action extra jus. The Development Authority is to act
E
in adherence to the provisions of the law regulating such
user or construction. The Development Authority or its
officers, have no power to vary the user and spaces
prescribed in the Master Plan, except by amending the
relevant laws and that too, for a proper object and
F
purpose. Any decision, as a policy matter or otherwise,
for any extent of public convenience, shall be vitiated, if
it is not supported by the authority. The Courts would
examine what is the sensible way to deal with this
situation, so as to give effect to the presumed purpose
G
of the legislation. The provisions in question should be
construed on their plain reading, supporting the structure
of the legislative intent and its purpose. The rule of
schematic interpretation would come into play in such
situations and the concerned Development Authority
H
cannot be permitted to overreach the procedure
882
SUPREME COURT REPORTS [2011] 15 (ADDL.) S C.R.
A prescribed by law, with designs not acceptable in law.
[Para 34] [913-A-D]
8. The Development Authority is inter a/ia performing
regulatory functions. There has been imposition of
8 statutory duties on the power of this regulatory authority
exercising specified regulatory functions. Such duties
and activities should be carried out in a way which is
transparent, accountable, proportionate and consistent.
It should target those cases in which action is called for
C and the same be exercised free of arbitrariness. The
Development Authority is vested with drastic regulatory
powers to investigate, make regulations, impute fault and
even to impose penalties of a grave nature, to an extent
of cancelling the lease. The principles of administrative
justice squarely apply to such functioning and are
D subject to judicial review. The Development Authority,
therefore, cannot transgress its powers as stipulated in
law and act in a discriminatory manner. The Development
Authority should always be reluctant to mould the
statutory provisions for individual, or even public
E convenience as this would bring an inbuilt element of
arbitrariness into the action of the authorities. Permitting
mixed user, where the Master Plan does not so provide,
would be glaring example of this kind. [Para 35] [913-EH; 914-A]
F
9.1. In the present case, the action of the
Development Authority in permitting mixed user was in
apparent violation of the statutory provisions in the
Master Plan. Establishment of banks and nursing homes
G in the residential sectors meant for residential use alone
was unequivocal violation of the statutory provisions in
the Master Plan. (Paras 38, 39) [914-G-H]
9.2. The lease deed executed in favour of the
predecessor-in-interest of R.K. Mittal and the other
H appellants had contained specific stipulations that the
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 883
& ORS.
lessee will obey and submit to all directions issued,
A
existing or thereafter to exist, as obeyed by the lessor.
The erection of the structure was also to be in
accordance with the approved plans. Clause (h) of the
lease deed specifically provides that the constructed
building shall be used only for the purpose of residential,
B
residential-cum-medical or surgical clinic and for no other
purpose, that too subject to such terms as are imposed
by the lessor. [Para 40] [915-A-C]
9.3. The transfer deed which was executed in favour
of the present appellants, with the approval of the C
Development Authority, also contained similar clauses
and also provided that the terms and conditions imposed
by Development Authority from time to time shall be
binding on the transferee. Clause 15 of the transfer deed
stipulated that the transferee shall put the property to use
D
exclusively for residential purpose and shall not use it for
any purpose other than residential. After raising the
construction on the plot in question, admittedly, the
appellants have put the property to a different use other
than residential. The property was rented out to two
E
different commercial undertakings, i.e., Andhra Bank and
a company by the name 'Akariti lnfotech'. It is not even
the case of the appellants that the Development Authority
had granted any specific permission to them to use the
property for any purpose other than residential. [Para 41]
F
[915-C-F]
9.4. The appellants, in fact, relied upon an agenda
note where there was a proposal put forward by the
Development Authority to grant permission for nursing
G
home, guest house, lodging house, banks etc. on a 100
metres wide road on such terms and conditions as may
be imposed by the Development Authority. This also
provided for levying certain additional charges for
granting such permission. Based on this proposal, it is
H
884
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A stated that a public notice was issued and objections
were invited. The matter rested at that. This was not
finalized. In other words, no final decision was taken by
the Development Authority in consonance with the
provisions of the Act to permit such user in the residential
B sector. It is a settled position of law that no authority can
exercise the power vested in it, contrary to law. In the
present case, there appears to be no proper data
collected or study carried out by the Development
Authority even for mooting such a proposal, much less
c amending the Plan or the Regulations. It is a matter of
regret that the Development Authority is dealing with
such serious matters in such a casual manner. Either
way, this certainly affected the rights of the parties
adversely. It is not only the rights of individuals which are
0 to be examined by the authorities concerned, but also the
effect of such amendment on the residential sector as a
whole which is one of the relevant factors to be
considered. [Paras 42, 43] (915-G-H; 916-A-D]
9.5. The running of a bank or a commercial business
E by a company in the residential sector is certainly not
permissible. In fact, it is in patent violation of the Master
Plan, Regulations and the provisions of the Act. No power
is vested in the Development Authority to permit such
user and ignore the misuse for such a long period. [Para
F 44] [916-E]
9.6. All the cases where banks, nursing homes or any
commercial activity is being carried on, p<'rticularly like
the appellants' case, where a bank and company are
running their offices in the residential sectors would
G amount to change of user and thus be impermissible. The
officers of the Development Authority should refrain from
carving out exceptions to the implementation of the
Master Plan and the Regulations in force, that too without
the authority of law. For taking up any exercise for
H change of user or such similar conditions, amendment
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 885
& ORS.
to the relevant Regulations, Master Plan and if needed,
A
the provisions of the Act, is a condition precedent. It
should be ensured that such exercise would further the
cause and object of the Act and would not be destructive
to the scheme of the development. No such jurisdiction
or authority vests in the officers of the Development s
Authority to permit change of user in its discretion and
in violation of the law in force. [Para 47] [917-G-H; 918-AB)
Shabi Construction Company v. City & Industrial
Development Corporation & Anr. (1995) 4 SCC 301 : 1995 C
(3) SCR 534 and K.K. Bhalla v. State of M.P. & Ors. (2006)
3 SCC 581 : 2006 (1) SCR 342 - relied on.
10. The action of the Development Authority should
be free of arbitrariness and must be applied uniformly.
D
The doctrine of reasonable expectation has no
applicability to the present case and there cannot be any
waiver of statutory provisions as well. The user of a sector
is provided under the Master Plan and in furtherance to
Regulations and the provisions of the Act. It is incapable
E
of being administratively or executively altered. The
lessees, who have changed the user contrary to law, are
liable to be proceeded against as per the terms of the
lease deed and the provisions of the Act. [Para 52) [921D-G]
F
11. The Master Plan and the Zonal plan specify the
user as residential and therefore these plots cannot be
used for any other purpose. The Plans have a binding
effect in law. If the scheme/Master Plan is being nullified
by arbitrary acts and in excess and derogation of the G
power of the Development Authority under law, the Court
will intervene and would direct such authorities to take
appropriate action and wherever necessary even quash
the orders of the public authorities. [Para 53] [921-H; 922A-B]
H
886 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A
12. An ancillary question that came up for
consideration was as to how much area can be permitted
to be used by a doctor to run his clinic or by a lawyer or
architect to run their offices in the residential sector. If
other conditions are satisfied, then as the law stands
B today, according to the Development Authority, they can
be permitted to use 30 per cent of the Floor Area Ratio
(FAR) of the ground floor for their clinics/offices. It would
be suffice if 30 per cent of the ground floor area is
permitted to be used for office of an architect/lawyer and
c for clinic simplicitor by a doctor. [Para 54] [923-E-G]
K. Ramadas Shenoy v. Chief Officer, Town Municipal
Councl1, Udipi and Others (1976) 1 SCC 24; M.I. Builders v.
Radhey Shyam Sahu [(1999) 6 SCC 464]: 1999 (3)
SCR 1066; Virender Gaur & Ors. v. State of Haryana & Ors.
D [(1995) 2 sec 5771 : 1994 (6) Suppl. SCR 78 and Delhi
Pradesh Citizen Council Vs. Union of India & Anr. (2006) 6
sec 305 - relied on.
13. The law imposes an obligation upon the
E 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. The concept of public accountability and
performance of public duties in accordance with law and
F for the larger public good are applicab!e to statutory
bodies as well as to the authorities functioning therein.
There is no justification, whatsoever, for the respondents
to act arbitrarily. There is also no justification for the
Development Authority to issue a public notice in the
G fashion in which it has done. A few officers of the
Development Authority cannot collectively act in violation
of the law and frustrate the very object and purpose of
the Master Plan in force, Regulations and provisions of
the Act. [Para 55] [924-A-E]
H
R.K. MITTAL & ORS. v. STATE OF UTIAR PRADESH 887
& ORS.
14. Tl:le appeals are accordingly disposed of in the
A
following terms:-
a. That banking or nursing homes or any other
commercial activity is not permitted in Sector 19 and
for that matter, in any sector, in the Development Area
earmarked for 'residential use'.
b. That the 21 banks and the nursing homes, which
B
are operating in Sector 19 or any other residential
sector, shall close their activity forthwith, stop
misuse and put the premises to residential use alone,
C
within two months.
c. That lessees of the plots shall ensure that the
occupant banks, nursing homes, companies or
persons carrying on any commercial activity in the
0
residential sector should stop such activity and shift
the same to the appropriate sectors i.e. commercial,
commercial pockets in industrial/institutional area
and specified pockets for commercial use within the
residential sector, strictly earmarked for that activity
in the development Plan, Regulations and provisions
of the Act.
E
d. That the Development Authority shall consider the
request for allotment of alternative spaces to the
banks and the persons carrying on other commercial
F
activities, with priority and expeditiousness.
e. That the Doctors, Lawyers and Architects can use
30 per cent of the area on the ground floor in their
premises in residential sector for running their clinics/
G
offices.
f. That for such use, the lawyers, architects and
doctors shall be liable to pay such charges as may
be determined by the Development Authority in
accordance with law and after granting an
H
A
B
c
D
E
F
G
H
888
SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
opportunity of being heard. The affected parties
would be at liberty to raise objections before the
Development Authority that no charges are payable
for such users as per the law in force.
g. In the event the lessee or the occupant fails to stop
the offending activity and/or shift to alternate
premises within the time granted in this judgment, the
Development Authority shall seal the premises and
proceed to cancel the lease deed without any further
delay, where it has not already cancelled the lease
deed.
h. Wherever the Development Authority has already
passed the orders cancelling the lease deeds, such
orders shall be kept in abeyance for a period of two
months. In the event the misuse is not stopped within
a period of two months in terms of this judgment,
then besides sealing of the premises, these orders
of cancellation shall stand automatically revived and
would come into force without further reference to
any Court. In the event the misuse is completely
stopped in all respects, the orders passed by the
authorities shall stand quashed and the property
would stand restored to the lessees.
i. These orders shall apply to all cases, where the
order of termination of lease has been passed by the
Development Authority irrespective of whether the
same has been quashed and/or writs of the lessees
dismissed by any Court of competent jurisdiction
and even if such judgment is in appeal before this
Court.
j. The orders in terms of this judgment shall be
passed by an officer not below the rank of
Commissioner. This order shall be passed after
giving an opportunity to the parties of being heard
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 889
& ORS.
by such officer. This direction shall relate only to the
A
determination of charges, if any, payable by the
lessee or occupant for the period when the
commercial activity was being carried on in the
premises in question. [Para 56] [924-E-H; 925-A-H;
926-A-F]
B
Case Law Reference:
2005 (3) Suppl. SCR 217 held inapplicable Para 19
(1990) Supp. sec 724
(2011) 6 sec 527 ,
2008 (12) SCR 867
held inapplicable Para 19
relied on
relied on
2004 (2) Suppl. SCR 504 relied on
1991 (3) SCR 102
2006 (1) SCR 1039
relied on
relied on
(2011) 7 sec 493
relied on
1995 (3) Suppl. SCR 212 relied on
1995 (3) SCR 534
relied on
2006 (1) SCR 342
(1976) 1 sec 24
1999 (3) SCR 1066
relied on
relied on
relied on
1994 (6) Suppl. SCR 78 relied on
(2006) 6 sec 305
relied on
Para 25
Para 25
Para 27
Para 28
Para 30
Para 31
Para 32
Para 36
Para 37
Para 53
Para 53
Para 53
Para 54
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6962 of 2005.
From the Judgment & Order dated 9.1.2002 of the High
Court of Judicature at Allahabad in Civil Miss. Writ Petition No.
36709 of 2010.
c
D
E
F
G
H
890
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
WITH
C.A. No. 6963 of 2005.
C.A. No. 10535 and 10536 of 2011.
B
Himanshu Munshi, Jitendra Mohan Sharma, Sandeep
Singh, Vibhor, Ajit Sharma, Vivek Sharma and Neeraj Kr.
Sharma for the Appellants.
Ravindra Kumar. Shrish Kumar Misra, Shiel Sethi,
C Rachana Joshi lssar, Nidhi Tewari, Ambreen Rasool, Alok
Prakash, Vinay Kumar Garg, Himanshu Munshi, Pahlad Singh
Sharma, Navin Chawla, Manoj Swarup & Co., C. Mukund, Bijoy
Kumar Jain, A. Jain and Pankaj Jain for the Respondents.
D
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Leave granted in both the
Special Leave Petitions.
2. The ambit and scope of power of New Okhla Industrial
Development Authority (for short, the 'Development Authority')
E to permit users, other than residential, in the sectors specifically
earmarked for 'residential use' in the Master Plan of the New
Okhla Industrial Development Area (for short, the 'Development
Area') is the basic question that falls for consideration of this
Court in this bunch of appeals. These appeals demonstrate
F some of the instances of widespread violation of statutory
provisions and somewhat arbitrary exercise of power by the
Development Authority. Lack of adoption of uniform application
of law has resulted in large nur, 1ber of cases of violation of law
all over the State of Ullar Pradesh going unnoticed. The time
G has come for the Development Authorities to change their style
of functioning and act vigilantly and uniformly, that too, strictly
in accordance with law, keeping in view the larger public
interest.
H
R.K. MITTAL & ORS. v. STATE OF UTTAR PRADESH 891
& ORS. [SWATANTER KUMAR, J.)
Introductory Facts
3. This judgment shall dispose of the above referred four
civil appeals and the applications for intervention therein. Out
A
of the four appeals, in Civil Appeal No. 6962 of 2005and Civil
Appeal arising out of SLP(C) No. 24029 of 2005, the lease
8
deed in favour of the parties had been cancelled by the
Development Authority while in other two appeals, Civil Appeal
No. 6963 of 2005 and Civil Appeal arising out of SLP (C)
No.9150 of 2007, after giving notice, it had passed an order
requiring the parties concerned to stop the misuse within the
stipulated time, failing which appropriate action in accordance
C
with ldw, including cancellation of the lease deed, would be
taken. The facts and circumstances in all the appeals and even
the intervention applications are somewhat similar. In any case,
the common question of law arising in·a11 the appeals and
applications is whether the residential premises can be, wholly
D
or partly, used by the original allottee or even its transferee, for
any purpose other than residential? We do not consider it
necessary to refer to the facts of each case in greater detail,
except the facts of the lead case, i.e., Civil Appeal No.6962 of
2005, RK Mittal v. State of U.P. However, wherever reference
E
to certain additional facts is called for, we would notice the
same in the other cases as well.
4. The Development Authority executed a lease deed
dated 2nd April, 1988 in favour of Shri Rajendra Kumar
F
Srivastava in relation to Plot No.778, Block A, Sector XIV, New
Okhla Industrial Development Area, District Ghaziabad,
admeasuring about 274.37 square meters as per the
boundaries described in the deed. Upon the plot, the lessee
raised some construction which remained unfinished. The
G
lessee thereupon actually transferred the plot in question along
with unfinished superstructure vide Transfer Deed dated 20th
August, 1999 i.n favour Shri R.K. Mittal, Shri Ashok Garg and
Shri Sanjeev Gupta, the appellants herein. The original lease
deed contained specific stipulations in regard to the lessee
H
892
SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A being obliged to obey all the Rules, Regulations and Directions
made by the lessor. The lessee was to raise construction as
per approved plans and to use the premises only for the
purpose for which it was committed in terms of the lease and
B
c
D
E
F
G
H
as per law. These clauses of the lease deed read as under :
"( d) That the lessee will obey and submit to all Directions
issued or Regulations made by the Lessor now existing
or hereafter to exist so for as the same are incidental to
the possession of immovable property or so far as they
effect the health, safety or convenience of the other
inhabitants of the place.
(e) That the Lessee will at his own cost erect on the
demised premises in accordance with the plans, elevation
and design and in a position to be approved by the lessor
or any officer authorised by the lessor in that behalf in
writing and in a substantial and workman like manner, a
residential building only with all necessary, sewers, drains
and other appurtenances according to the Directions
issued or Regulations made in respect of buildings, drains,
latrines and connection with sewer.
xxx xxx
xxx
(h) That the lessee shall use the demised premises only
for the purpose of constructing a building for residential
purpose of customary home occupation or residential cum
medical and surgical clinic or dispensary or professional
office and for no other purpose without the consent of the
Lessor and subject to such terms & conditions as Lessor
may impose and will not do or suffer to be done on
demised premises or any part thereof, any act or thing
which may be or grow to be a nuisance, damage,
annoyance, or inconvenience to the Lessor or the owners,
occupiers of other premises in the neighbourhood."
5. The Transfer Deed executed by the original lessee in
·,R.K. MITIAL & ORS. v. STATE OF UTIAR PRADESH 893
& ORS. [SWATANTER KUMAR, J.]
fav_our of the appellants also contained similar conditions and
A
in addition thereto provided that the conditions of the lease
deed shall be binding upon the appellants. The relevant clauses
of the Transfer Deed read as under :
"10. That the Transferees shall complete the construction
B
of plot and shall obtain Occupancy Certificate of
Plot from Building Cell, Neida within balance
construction period as per terms of lease deed of
plot which is upto 23.2.2000. Extension of time for
construction of plot and for obtaining occupancy
certificate will be granted as per terms of lease c
deed of plot and as per then prevailing extension
policy of NOIDA.
11.
That the Transferee shall be bound by the terms and
conditions of lease deed of plot executed on
D
2.4.88, subject to the amendments indicated in the
Transfer Memorandum.
xxx xxx xxx
15.
That the Transferees shall put the property in the use
E
exclusively for residential purpose and shall not use
it for any purpose other than residential.
xxx xxx xxx
17.
That the terms and conditions amended by the
NOIDA AUTHORITY from time to time shall be
binding on the Transferees aforesaid."
6. After completing the construction, the appellants appear
F
to have rented out the premises to Andhra Bank and Akariti
G
lnfotech. As such, both the bank and the company had been
carrying on their business from the premises in question. The
Developmenf Authority, on 18th January, 2001 and 22nd
February, 2001 issued notices to both Andhra Bank and Akariti
lnfotech to stop commercial use in the said premises within 30
H
894
SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A days, failing which action would be taken as per the lease deed.
In these notices, it was also stated that there was
encroachment in violation of the prescribed building byelaws
and the use of residential plot for commercial purpose was in
violation of the provisions of the lease deed of the plot. Invoking
B the provisions of the U.P. Industrial Area Development Act,
1976 (for short, 'the Act'), the Development Authority gave them
opportunity to file objections. To these notices, the appellants
not only filed objections but also appeared before the
Development Authority and contended that the Development
c Authority, in furtherance to the proposal to permit running of
consulting clinics, banks and guest houses in the residential
areas, had permitted such use on the main roads, on payment
of 30 per cent of the existing residential rate on per square
meter area of plot per annum and had invited suggestions from
0 the general public. Reliance was also placed on certain press
reports. Noticing these facts and obviously taking the view that
there was no legal sanctity to the alleged change of user, the
Development Authority rejected the objections and required the
misuse to be stopped and the violation of the building byelaws
E to be removed within four months. A part of the said order reads
as follows:
"The terms and conditions of lease deed and transfer deed
of plot clearly states that allotted plot shall be used
exclusively for residential purposes. T~ ? petitioner
F
changed the land use of plot without intimating to the
Authority and did not bother to seek any clarification or
obtain permission from the Authority for such change. It is
a well known fact that this Authority does not permit
commercial activity in the residential plots. This is a classic
G
case of violation of law by the most educated enlightened
class of the Country. This class in Naida has tried to
change not only the character of Naida but have for self
interest destroyed the peace of the Neighbours. It is also
possible that the then Bank staff also colluded in the matter
H
and did not bother to see the conditions contained in the
R.K. MITIAL & ORS. v. STATE OF UTTAR PRADESH 895
& ORS. [SWATANTER KUMAR, J.]
lease deed and did not even try to approach the Authority
A
for clarification.
In view of the above stated facts and after listening
to the petitioner, it is ordered that representation pleadings
of the petitioner Allottee of Residential Plot No.A-778,
B
Sector-19 stand rejected and the petitioner is also directed
to ensure vacation of bank branch and infotec office from
the residential premises and restore the building according
to prescribed building bye-law within 4 months (Four
Months) from the date of service of this order.
7. As the Petitioner has evaded compliance of terms of
lease deed for nearly five months on one pretext or the
other, he is also informed that in case of failure to restore
c
the land use of plot within stipulated period, the Authority
shall be free to take further action under law WITHOUT
D
FURTHER NOTICE.
Orders regarding penalty for misuse of premises will
be passed separately."
7. Aggrieved from the aforesaid order, the appellants filed
E
a writ petition before the High Court of Judicature at Allahabad.
The writ petition preferred by the appellants came to be
dismissed vide order dated 19th January, 2002. It was noticed
by the High Court and rightly so, that the Development Authority
had invited some suggestions for change of user of residential
F
plots to commercial or mixed user on certain terms and
conditions, by bringing certain changes/amendments in its
byelaws and policy decisions. This remained at an interim
stage and no final decision was taken by any competent
authority in accordance with the provisions of the Act. The
G
Development Authority had not undertaken any exercise for the
said amendment in accordance with law and had not even
sought the approval of the State Government, as required
under the law, for change of user or amendment of the byelaws,
Master Plan, etc. In fact, the provisions directing forfeiture of H
896
SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R
A property under Section 14 of the Act and imposition of penalty
for misuse in terms of Section 15 of the Act were in force.
Relying upon judgment of this Court in Munshi Ram v. Union
of lndia[(2000) 7 SCC 22], the High Court not only dismissed
the writ petition but also directed the Development Authority to
B take immediate and strong action against those who have
started using residential plots, wholly or partially, for other nonresidential uses. The appellants, feeling dissatisfied by the
judgment of the High Court, have preferred the present appeal
before this Court. In order to complete the factual matrix of the
c case, we may notice that the appellants have placed on record
Annexure P-7, a copy of the public notice dated 30th March,
2000 indicating that there was proposal to grant permission for
mixed use consulting clinics, bank branch and guest houses on
18 A.M. wide roads on the conditions stated therein. These
D conditions also included the provision that fees payable on grant
of permission for mixed use of land would be 30 per cent of
existing residential rate, on per square meter area of plot, on
yearly basis. To this proposal, public opinion was invited and it
was stated that objections/suggestions in this regard may be
filed in writing in the office of the Additional Chief Executive
E Officer of the Development Authority. Even hearing was to be
granted. In the affidavit filed on behalf of the respondentDevelopment Authority on 8th October, 2002, it has been
specifically averred that 21 banks were functioning in residential
sector in the Development Area under private arrangements
F with the lessees of the concerned plots and these banks have
not obtained any permission or authorization from the
Development Authority. Two banks, namely, Oriental Bank of
Commerce, Sector 27, Neida and Vijaya Bank, Sector 19,
Naida had obtained such permission for a period of five years
G and three years respectively since 1995 and 1994. These banks
had not obtained any permission or renewal thereafter. Show
cause notices had been issued to all the banks to wind up their
activities from these areas. In para 10 of the affidavit, it had
been stated that the Development Authority 'has taken a firm
H decision to evict all the banks from the residential sectors and
R.K. MITIAL & ORS. v. STATE OF UTIAR PRADESH 897
& ORS. [SWATANTER KUMAR, J.)
notices have been issued to all these 21 banks without A
exception'. A definite averment has also been made in this
affidavit that the functioning of the banks in the residential
sectors caused inconvenience and disturbance to the public at
large and the Development Authority has earmarked specific
areas for making land available to the banks to carry on their
B
commercial activities. They have allotted land to several banks
in commercial-cum-institutional and commercial portion of
industrial and institutional sectors. Option was given to the 21
banks to function in these areas and that if they would apply
for the same, the Development Authority shall consider their c
cases sympathetically. The Development Authority, specifically
and with emphasis, reiterated that banking activities cannot be
allowed in residential plots of the residential sector. Another
affidavit was filed on behalf of the Development Authority in
March 2011, wherein a clear stand was taken that as per the
D
Master Plan, Sector 19 of the Development Area is a
residential sector, where the land use is residential alone,
neither commercial nor mixed. List of 43 properties in Sector
19, Neida was filed as Annexure-1, where non-residential
activities, including banking and medical clinics, were being
carried on while Annexure-2 related to other 11 properties
E
being used for other non-residential purposes in Sector 19 itself.
There are institutional plots in Sector 19, which had been allotted
by the Development Authority for running of nursing homes or
commercial activity. An office order was issued on or about 14th
May, 2009, in relation to Guest Houses, by the Chief Executive
Officer of the Development Authority. However, the same is
stated to have been withdrawn immediately thereafter. In other
words, according to the respondents, there is no order or
sanction operative and binding as of now, which permits any
user other than residential in the residential sector.
F
G
8. Having stated the facts, we may now examine the
relevant provisions of law. The State of Uttar Pradesh had
enacted the law to provide for creation of an Authority for
development of certain areas of the State into industrial and
H
898
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A urban townships and for matters connected therewith. 'Authority'
had been defined under Section 2(b) of the Act to mean the
Authority constituted under Section 3 of the Act. Section 3
required the State Government to constitute, for the purposes
of the Act, an authority for any industrial Development Area in
B terms of that Section. Section 6 of the Act related to functions
of the Authority while Section 7 mentions the powers of the
Authority in respect of transfer of land.