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2020 DIGILAW 1227 (ALL)

Anjuman Islahul Muslimeen Thru. Secy. Janab Zaharyab Jilani v. State Of U. P. Thru. Prin. Secy. Housing & Urban Develop

2020-10-14

JASPREET SINGH, PANKAJ MITHAL

body2020
JUDGMENT : 1. The petitioner claims to be a Charitable Society registered under the Societies Registration Act, 1860. Janab Zafaryab Jilani, an Advocate of this Court is said to be its Secretary as also the Mutawalli of Waqf Suppa Mutassil Bulaki Adda, Lucknow [Sunni Waqf No.412-Lucknow]. 2. The petitioner has preferred this petition for quashing the Order dated 9.9.2020 passed by the Prescribed Authority, Lucknow Development Authority, Lucknow, the sixth respondent and for a direction not to take any coercive action against it for demolition of 15 shops constructed by it on the property of the aforesaid Waqf. 3. We have heard Sri Arvind Verma, Senior Counsel assisted by Sri Mohd. Altaf Mansoor, learned counsel for the petitioner, Sri Rohit Nandan Shukla, learned Standing Counsel for the State-respondents, Sri Ratnesh Chandra, learned Counsel for Lucknow Development Authority and Sri Q. H. Rizvi, learned Counsel for U. P. Sunni Central Waqf Board. 4. The Order impugned dated 9.9.2020 is an order passed under Section 28-A(1) of the U. P. Urban Planning and Development Act, 1973 [for the sake of brevity, it is referred to as 'Act']. It states that after issuance of show cause notice and on the basis of the inspection report, it has been found that the petitioner had raised construction of the shops without the sanctioned map and as such, the constructions are illegal. Since the construction activity is not being stopped, despite notice and public notice, it is necessary to seal the premises. 5. Sri Arvind Verma, learned Senior Counsel argued that the aforesaid order has been passed without actually serving any notice upon the petitioner or its Secretary. The notice served upon any other person is not a notice upon the petitioner, therefore, the order impugned is in violation of principles of natural justice. Secondly, the petitioner has constructed 15 shops on the above property with the permission of U. P. Sunni Central Waqf Board, therefore, in view of the Circulars dated 4.2.1994 and 15.3.1994, the petitioner was not required to take any permission for the purposes of construction from the concerned Development Authority. Lastly, it has been submitted that the constructions of the petitioner, even if raised illegally, can always be compounded and are not liable to be demolished. 6. Learned Counsel for the petitioner was pointedly asked to disclose if there is any sanctioned map, but the reply was evasive. Lastly, it has been submitted that the constructions of the petitioner, even if raised illegally, can always be compounded and are not liable to be demolished. 6. Learned Counsel for the petitioner was pointedly asked to disclose if there is any sanctioned map, but the reply was evasive. No sanctioned map has been produced nor it has been pleaded anywhere that the constructions are in accordance with any sanctioned plan except for stating that the constructions are on the basis of the permission granted by the U. P. Sunni Central Waqf Board. 7. We have perused the Office Memorandum of U.P. Sunni Central Waqf Board dated 26.6.2020 granting permission to the petitioner to construct 15 shops measuring 15' x 3' between Gate Nos.3 and 4 of the Kabristan which forms part of the aforesaid Waqf property. The said permission is not an absolute one, rather it is conditional in nature and one of the condition is that the construction shall be made subject to the necessary permission from the local competent authorities. In other words, the Sunni Central Waqf Board has only permitted the petitioner to raise construction on the Waqf Property provided necessary permission is obtained from the competent authority. It nowhere permitted them to raise constructions in violation of the statutory provisions or the sanction of the map by a Competent Authority which naturally refers to the Development Authority. 8. It may be pertinent to mention here that permission to construct by the Waqf Board is quite distinct and separate from the permission to construct as per the map sanctioned by the Development Authority. It is just like owner permitting construction by the tenant or any other person on his land but ultimately the construction has to be in accordance with the sanctioned plan. The permission by the owner does not absolve the builder from taking permission/sanction of the map from the competent authority. 9. The Act vide Section 14 provides that an area within the development area shall not be developed unless permission for such development has been obtained in writing from the Vice-Chairman of the Authority in accordance with the provisions of the Act. The relevant portion of such Section 14 (1) of the Act reads as under:- "14. 9. The Act vide Section 14 provides that an area within the development area shall not be developed unless permission for such development has been obtained in writing from the Vice-Chairman of the Authority in accordance with the provisions of the Act. The relevant portion of such Section 14 (1) of the Act reads as under:- "14. Development of land in the development area --(1) After the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body including a department of Government unless permission for such development has been obtained in writing from the Vice-Chairman in accordance with the provisions of this Act." 10. In view of the above statutory provision, no person has any right to raise any construction within the developed area without getting the map sanctioned from the Development Authority. Admittedly, the property of the Waqf is within the development area of the Lucknow Development Authority. Thus, any constructions undertaken or carried out without the permission of the Development Authority are ex facie illegal. 11. Sri Arvind Verma, Senior Counsel has relied upon the Government Order dated 14.3.1994. The said Government Order states that no permission is needed from the concerned Development Authority for the construction of commercial centres on the Waqf Property, if permission has been obtained for construction from the Sunni/Shia Central Waqf Board. 12. It is well settled that a Government Order cannot override the statutory provisions of law. 13. In view of the above settled position, the aforesaid Government Order dated 14.3.1994 or the earlier Order dated 4.2.2994 to the same effect are ineffective and are liable to be ignored being contrary to the express provision of Section 14 of the 1973 Act. 14. Sri Ratnesh Chandra, learned Counsel for Lucknow Development Authority and Sri Q. H. Rizvi, learned Counsel for Sunni Central Waqf Board have supported the above view taken by us and that any constructions raised by the petitioner without the sanctioned map are totally unauthorized. 15. The notice/order is addressed to one Babu Bhai, Intekhab Zilani and Masood Zilani, Kabristan Suppa, Near Bulaki Adda, Lucknow. The said Intekhab Zilani and Masood Zilani are admittedly the builders and the brothers of the Secretary of the petitioner. 15. The notice/order is addressed to one Babu Bhai, Intekhab Zilani and Masood Zilani, Kabristan Suppa, Near Bulaki Adda, Lucknow. The said Intekhab Zilani and Masood Zilani are admittedly the builders and the brothers of the Secretary of the petitioner. They are the persons engaged in the activity of raising construction and it is highly improbable that any notice issued and served upon them would not be in the knowledge of the Secretary. 16. The crux of the matter is that the petitioner has raised and is raising constructions of the shops without getting any map sanctioned from the Development Authority. 17. The submission that the petitioner was not afforded proper opportunity of hearing is more or less meaningless, as principles of natural justice are not an empty formality. The petitioner cannot improve upon its case, even if any opportunity was given to it, inasmuch as it does not possess any sanctioned map according to which constructions are being raised. 18. The petitioner also has a statutory remedy of appeal/revision against the aforesaid order. 19. In view of the aforesaid facts and circumstances, it is not a case fit enough for us to exercise our extraordinary jurisdiction. Accordingly, we decline to interfere in the matter. 20. The petitioner may, however, apply to the Development Authority for compounding of the construction, if that is so permissible and as may be advised to it. 21. The writ petition lacks merit and is accordingly dismissed. There is no order as to costs.