JUDGMENT By the Court.—We have heard Shri Umesh Narain Sharma, Sr. Advocate assisted by Shri Nikhil Agrawal for the petitioners. Shri B.B. Paul assisted by Shri A.B. Paul appears for Allahabad Development Authority. Shri S.D. Singh appears for respondent No. 7. Counter-affidavit has been filed on behalf of respondent Nos. 7 and 8 by Shri Ashok Pandey. 2. This writ petition is directed against the order passed by the Vice Chairman of the Allahabad Development Authority dated 17.6.2009 by which in pursuance to the directions issued by this Court on 26.7.2007 in Writ Petition No. 33846 of 2007 the building plan for multistoried building approved on 3.8.2002 for constructing flats on X/2, Civil Station, Sardar Patel Marg was cancelled with directions that since the flats constructed on the building have been occupied and purchased by individuals, who cannot be found to be at fault, a fresh compounding plan be submitted by Smt. Kiran Bir, who is owner of the entire plot area of 1796.05 sq. mtrs. The order also directs that since the petitioner has constructed shops in place of godowns in the basement, which cannot be compounded, the shops are liable to be proceeded for sealing and demolition, in accordance with law. 3. Late Smt. Kiran Bir was the lessee of the land. She entered into an agreement with petitioners for developing the land for which she has applied for conversion of 1810 sq. mtrs. into freehold. The parties agreed for constructions on 1796.05 sq. mtrs. of land to which Shri Pradeep Bir and Shri Sandeep Bir sons of Smt. Kiran Bir were confirming parties and had signed on the agreement for development of the land. A building plan was submitted for construction of three storied building with flats with ground coverage of 537.50 sq. mtrs. and with basement (godown). The building plan provided for front setbacks of 9 mtr., rear set back of 9 mtrs., side setbacks of 5 mtrs. and parking area of 336 sq. mtr. 4. The petitioner as developer of the land started and completed constructions in the year 2005. 5. A notice was issued by the Allahabad Development Authority on 14.12.2004 after which an order was passed under Section 28 (2) of the U.P. Urban Planning and Development Act, 1973 to stop the constructions to which objections were filed by the petitioner. mtr. 4. The petitioner as developer of the land started and completed constructions in the year 2005. 5. A notice was issued by the Allahabad Development Authority on 14.12.2004 after which an order was passed under Section 28 (2) of the U.P. Urban Planning and Development Act, 1973 to stop the constructions to which objections were filed by the petitioner. An application was made by him for compounding with a compounding plan alongwith a cheque of Rs. 50,000/- as advance compounding fees. 6. The order of the Zonal Officer, Allahabad Development Authority, Allahabad dated 6.7.2007, rejecting the application of the petitioner seeking compounding of the unauthorized constructions and his subsequent order dated 9.7.2007, was challenged by the petitioner in Writ Petition No. 33846 of 2007, on the grounds that the compounding plan had received consideration for which an amount of Rs. 9,39,789/- was quantified as compounding fees for compounding the constructions. The order, however, was not communicated to the petitioner and instead the compounding plan was rejected. 7. This Court considered the grounds raised in the writ petition and decided the writ petition with directions to give fresh notice to the petitioner within one week and to decide the case by speaking and reasoned order within a period of four weeks. The relevant part of the directions given by the Court in disposing of the writ petition are quoted as below : “The aforesaid discussions make it crystal clear that the case has a chequered history and it is not evident as to whether the application submitted by the petitioner for compounding the construction raised in contravention of the sanctioned plan/unauthorized construction has been accepted or rejected. Photo copies of the orders passed by the Development Authority reveal both ways. The order impugned has been passed giving an impression that it is still open to the respondent authorities to consider the application further for compounding the unauthorized construction within permissible limits. For that purpose, the notice dated 9.7.2007 (Annex-18) has been given to the present petitioner. In the aforesaid fact situation it is neither desirable nor permissible to decide the factual controversies and determine as to what is the exact position and it is not so required for the reason that we are fully satisfied that none of the parties has acted in a bona fide manner. In the aforesaid fact situation it is neither desirable nor permissible to decide the factual controversies and determine as to what is the exact position and it is not so required for the reason that we are fully satisfied that none of the parties has acted in a bona fide manner. It is evident from the impugned notice dated 9.7.2007 that petitioner has still an option to make a proper representation before the Development Authority. However, considering the backdrop of the case as representations have been filed several times and several orders purported to have been passed by the Authorities without giving any clear indication as what has been the stand of the Development Authority it is desirable that the Authority may give a fresh notice within one week from today to the present petitioner indicating the deficiencies/infirmities in the notice pointed wise so that the petitioner may understand as to what issues he has to meet and he may submit the reply within ten days thereafter annexing the documents, if any. The learned Vice Chairman of the Development Authority is requested to consider the whole case and pass a speaking and reasoned order within a period of four weeks thereafter and communicate the same to the petitioner. Needless to say that in case petitioner is aggrieved of the order so passed he may approach the Appellate/Revisional forum. With these observations petition stands disposed of.” 8. A show-cause notice was issued to the petitioner by the Vice Chairman, Allahabad Development Authority, Allahabad on 28.11.2007 in purported compliance of the directions of the Court dated 26.7.2007 in which ten objections were taken. These objections pointed out the deficiencies in the constructions including the areas on each floor. The objections required the petitioner to delineate the compoundable/non-compoundable areas with different colours for each floor; a modified compounding plan to be submitted with the required parking area which may ensure garage to be removed for providing parking area; no objection on the compounded plans by the Fire Department; provisions to be made for rain water harvesting and solar system with necessary drawing, certificate of compliance by Architect and Structural Engineer with the provisions of the Government Orders providing for buildings to be protected from earthquakes; and no objection certificates from Nagar Nigam, Allahabad and Traffic department. The deficiency No. 4 pointed out in the show-cause notice related to the dispute of ownership/building agreement for which decision was required to be taken in pursuance to the directions, which may be issued by Hon’ble High Court. The petitioner submitted a reply on 4.12.2007, in which he allegedly made compliance with all the deficiencies. He, however, did not submit any reply to Point No. 4 taken in the show-cause notice regarding the dispute with regard to ownership/builders agreement for which the Allahabad Development Authority required the decision to be taken in accordance with the order to be passed by the Court. 9. By the impugned order the compounded plan after reproducing the deficiencies has been rejected on the basis of the opinion expressed by the Additional Advocate General, which was considered in the meeting of the authority on 5.6.2009. The opinion of the Additional Advocate General quoted in the order reads as follows : “A. I am, therefore, of the opinion that for the sanction of map it is only 1468.63 Sq. Meter of land could have been used. Consequently sanctioning map over the entire area of 1796.05 Sq. Meter is not as per the terms and conditions of the Builder’s Agreement. B. I am, therefore, of the opinion that the sanction of map in name of builder is not legal and proper.” 10. Shri Umesh Narain Sharma appearing for the petitioner submits that the order is entirely arbitrary and illegal in as much as it has not taken into consideration the reply given by the petitioner to the deficiencies pointed out for compounding the constructions. After narrating the deficiencies in the constructions the Vice Chairman has referred to complaint made by Shri Pradeep Bir son of Smt. Kiran Bir, the owner of the land alleging that the builder’s agreement was only with regard to 1468.48 sq. mtr. of land, whereas the building plan was sanctioned on 1796.05 sq. mtr. by owner of the building Smt. Kiran Bir, whereas the building plan has been sanctioned in the name of the builder. 11. It is submitted that the objections filed by Shri Pradeep Bir dated 2.12.2008 is entirely baseless in as much as he is confirming party to the agreement entered into with his mother late Smt. Kiran Bir, the lessee of the property. 11. It is submitted that the objections filed by Shri Pradeep Bir dated 2.12.2008 is entirely baseless in as much as he is confirming party to the agreement entered into with his mother late Smt. Kiran Bir, the lessee of the property. He was running a garage on small portion of the land, which was shown as parking space. On the objections raised by the Allahabad Development Authority the gate and boundary wall of the garage were demolished by the Authority after the building was completed giving rise to a dispute between the petitioner and Shri Pradeep Bir. The petitioner has filed Civil Suit No. 633 of 2006, which is pending in the Court of Civil Judge, Allahabad against Smt. Kiran Bir and her two sons including Pradeep Bir in which interim injunction has been granted on 11.10.2006 with regard to the parking area, which is claimed by Shri Pradeep Bir as his garage, and which according to him was not included in the agreement. The private dispute between the petitioner and Shri Pradeep Bir, who is confirming party to the agreement, is to be decided by the Civil Court. Such a dispute could not be a ground on which compounding plan could be rejected after the constructions were complete and the flats have been sold and occupied by flat owners. 12. Shri Umesh Narain Sharma further submits that there was no legal issue or constitutional issue involved for seeking opinion of Additional Advocate General, U.P. The opinion given by the Additional Advocate General is not in conformity with the provisions of the Act and the show-cause notice, which was given to the petitioner in pursuance to the directions issued by the Court on 26.7.2007 in the earlier writ petition. A private dispute between the owner of the building and developer cannot be ground on which compounding plan could be rejected specially when there was no dispute regarding title over the land. 13. Shri B.B. Paul has raised preliminary objection on the maintainability of the writ petition. He states that the order is appellable under Section 27 (2) of the Act, 1973 in as much as a building plan has been cancelled. 13. Shri B.B. Paul has raised preliminary objection on the maintainability of the writ petition. He states that the order is appellable under Section 27 (2) of the Act, 1973 in as much as a building plan has been cancelled. In the judgment of this Court dated 26.7.2007 passed in the earlier writ petition, it was specifically provided that in case the petitioner is aggrieved by the order passed by the Vice Chairman, he may file an appeal or revision against the order. The dispute raised in the writ petition are factual in nature, which should not be decided by this Court at the first instance, when the alternative remedy of appeal is available. 14. Shri Umesh Narain Sharma appearing for the petitioner submits that the impugned order has not been passed under Section 27 (1) of the Act for demolition of the building. The order is referable to Section 15 (9) of the Act, which is not appellable. The Act of 1973 provide for appeal, wherever it was found necessary by the legislation. The powers under sub-section 9 of Section 15, can be invoked only when the Vice Chairman of the Authority is satisfied at any time after permission has been granted in sub-section (3) that such permission was granted in consequence of any material misrepresentation made or any fraudulent statement or information furnished, for reasons to be recorded in writing and any work done thereunder shall be deemed to have been done without such permission. The proviso to the sub-section (9) states that the permission shall not be cancelled without affording the person or body concerned a reasonable opportunity of being heard. 15. In the present case we find that in the earlier writ petition there was no objection raised with regard to any dispute between the owner of the land and the petitioner. The notice to stop constructions did not refer to any such dispute. The show-cause notice dated 28.11.2007 given after the judgment of the High Court dated 26.7.2007 in Writ Petition No. 33846 of 2007, makes a reference to the dispute in objection No. 4, with observations that the matter will be decided after obtaining orders from the High Court. The Authority did not make any application in the High Court for any clarification or modification of the judgment. 16. The Authority did not make any application in the High Court for any clarification or modification of the judgment. 16. In the present case there is no dispute that the building plans were submitted and were approved on 3.8.2002 after which the constructions of the building started. No objection was raised by either Late Smt. Kiran Bir or Shri Pradeep Bir, who is confirming party to the agreement that the petitioner did not have consent to either submit building plan or to raise construction. Shri Pradeep Bir made a representation on 2.12.2008 after the building was complete. Their appears to have been no dispute between the parties with regard to construction or area under construction. The Civil Suit has been filed by the petitioner against Smt. Kiran Bir and two sons, which is pending and in which the question of interpretation of the builders agreement as well as the are of construction is to be decided by the Civil Court. 17. Shri S.D. Singh, learned counsel for respondent Nos. 7 and 8 states that the signatures of Smt. Kiran Bir were forged on the original building plan. She had only signed on the building plan and that the compounding plan also does not bear the signatures of Smt. Kiran Bir. The constructions have been made on building plan submitted for area of 1796.05 sq. mtr., whereas it was agreed that only area of 1468.63 sq. mtr. will be developed. The builder has wrongly shown the remaining area as parking area and that since the fraud has been played by the petitioner, this Court may not interfere. Once an objection has been raised that the signatures of the owner are forged, the matter would fall under sub-section (9) of Section 15 of the Act on which building plan could be cancelled. 18. We have heard learned counsel for the parties and perused the records. It is not denied that there was a builders agreement and that building plan was approved on 3.8.2002. No objection was raised to the approval of the building plan and construction of building for several years. It was only after building was constructed and that Allahabad Development Authority started raising objection with regard to unauthorised constructions on the floors, the user of the basement and non-provision of the parking area that a dispute arose between the petitioner and Shri Pradeep Bir. It was only after building was constructed and that Allahabad Development Authority started raising objection with regard to unauthorised constructions on the floors, the user of the basement and non-provision of the parking area that a dispute arose between the petitioner and Shri Pradeep Bir. The dispute is pending adjudication before the Civil Court, which has granted interim injunction on 11.10.2006. In our view these disputes after building was constructed and question of compounding has been raised by Allahabad Development Authority could not have been taken up by the Allahabad Development Authority treating them to be misrepresentation and fraud on which building plan could be cancelled. The building has been constructed and flats have been sold. These flats are being occupied by persons, who do not have any concern with the dispute between the petitioner and Shri Pradeep Bir. The Vice Chairman, Allahabad Development Authority has also tried to protect the interest of the flat owners, who have purchased flats and has confined his order for compounding to the non-compoundable areas in the building, user of the basement parking area for which he has declared proceedings to be taken in accordance with the provisions of the Act. 19. We also find that the petitioner was not put to a show-cause notice giving facts with regard to dispute which were not raised by Shri Pradeep Bir in his complaint. The show-cause notice does not refer to any such dispute nor give details of the complaint filed by Shri Pradeep Bir to which any reply could be given by the petitioner and in any case such a dispute could not have been subject-matter of consideration by the Vice Chairman of the Allahabad Development Authority. The dispute has to be decided by the Civil Court in the pending civil suit in accordance with law. 20. We are also prima facie satisfied that when Shri Pradeep Bir did not raise any dispute with regard to sanction of the plan on 1468.63 sq. mtr. of land until the constructions were complete, he could not have made complaint for cancellation of the building plan. At best his objections were confined to submission of building plan for a shorter area than for which agreement was entered into subject to decision of Civil Court. The covered area on the ground is only 537.5 sq. mtr., which comes to 29.92% of the area for which building plan was submitted. At best his objections were confined to submission of building plan for a shorter area than for which agreement was entered into subject to decision of Civil Court. The covered area on the ground is only 537.5 sq. mtr., which comes to 29.92% of the area for which building plan was submitted. It is also not denied that the building was under construction from the year 2002 to 2005. Shri Pradeep Bir did not object to the constructions. It appears that when question of removal of his garage and its user as parking area was raised, he filed objections to the submission of building plan on total area of 1796.05 sq. mtr. 21. The construction of building is complete. In the earlier writ petition objection was raised that certain unauthorised constructions are not compounded and that the user of basement has been converted from godown to shops, which should be removed. There was some objection with regard to parking area also on which there is dispute between the petitioner and Shri Pradeep Bir, which should await the decision of the Civil Court. 22. Before parting with the matter we may observe that the Board of ADA has not taken any independent decision in accordance with the provisions of the Act. It has been guided by the advice of the Additional Advocate General U.P. for which it was not necessary for the Board to call for advice, as there was no legal issue or any constitutional issue and in any case his opinion is entirely indefinite and vague. His opinion also does not refer to any misrepresentation or fraud, which required interference of the Vice Chairman of ADA under sub-section (9) of Section 15 of the Act. The Vice Chairman, ADA having acted illegally and arbitrarily in seeking the opinion of the Additional Advocate General proceeded to exercise its discretion on compassion in favour of the flat owners, which is also misplaced. If the building has been raised illegally without sanction of the plan, the residents had no right to complaint as they were required to make necessary enquiries before purchasing the flat. If the building has been raised illegally without sanction of the plan, the residents had no right to complaint as they were required to make necessary enquiries before purchasing the flat. If, however, there is no dispute with regard to validity of the approval of the building plan and that objections have only been taken in raising constructions, which are not compoundable or for removing obstruction in basement or parking, the Vice Chairman should have confined his order only to such objections. 23. We also find that the Vice Chairman did not have authority to direct Late Smt. Kiran Bir to file fresh compounding plan in respect of entire area of the land, for compounding constructions. Smt. Kiran Bir had admittedly entered into agreement for developing the land. Her signatures on agreement and signatures of Shri Pradeep Bir as confirming party to the agreement are not denied. The objection is confined to the signatures of Smt. Kiran Bir on the building plans sanctioned on 3.8.2002 raised after constructions of building was completed. It is difficult to believe that the owner allowed construction on the building, when she has not signed on the building plans. 24. In our view, the Vice Chairman has not exercised powers in accordance with the provisions of sub-section (9) of Section 15 of the Act. His order is illegal and arbitrary and it does not refer or deal with non-compoundable construction and illegal use of the basement and parking area and non-provision of the parking area. In the facts and circumstances, the writ petition is allowed. The impugned order dated 17.6.2009 passed by the Vice Chairman, Allahabad Development Authority is set aside. He is directed to decide the matter afresh on the deficiencies pointed out in the show-cause notice after taking into consideration the petitioner’s reply for removing the deficiencies. If constructions and user is non-compoundable, the Vice Chairman will pass necessary order and ensure that non-compoundable areas are demolished and its user is made in accordance with sanctioned building plan. 25. The question of any dispute between the petitioners and the owners will be subject to civil suit pending between them in the Court of Civil Judge, Allahabad. If constructions and user is non-compoundable, the Vice Chairman will pass necessary order and ensure that non-compoundable areas are demolished and its user is made in accordance with sanctioned building plan. 25. The question of any dispute between the petitioners and the owners will be subject to civil suit pending between them in the Court of Civil Judge, Allahabad. A fresh order will be passed by the Vice Chairman, ADA after giving an opportunity of hearing to the petitioner and Shri Pradeep Bir as expeditiously as possible and preferably within eight weeks from the date a certified copy of this order is produced before him.