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2022 DIGILAW 1372 (ALL)

Kiran Pal v. State of U. P.

2022-08-30

MANOJ KUMAR GUPTA, RAM MANOHAR NARAYAN MISHRA

body2022
JUDGMENT : 1. Heard Sri Ashish Kumar Singh for the petitioners, learned standing counsel for respondents no. 1 and 4 and Mrs. Anjali Upadhya for respondents 2 and 3. 2. The petitioners have prayed for quashing of an order dated 13.5.2022 passed by respondent no. 1 i.e. Chief Executive Officer, NOIDA, Gautam Budh Nagar. By the said order, the representation filed by the petitioners in response to a notice dated 20.12.2021 issued by respondent no. 2 (NOIDA) has been decided in compliance of order dated 28.1.2022 passed by this Court in Writ (C) No. 692 of 2022. The objection of the petitioners has been rejected and it has been held that the constructions raised by the petitioners over Khasra No. 734 are illegal and unauthorised and are therefore liable to be demolished. 3. In brief, the facts necessary for disposal of the instant petition are that a demolition notice was issued to the petitioners on 20.12.2021 by respondents no. 3 and 4 mentioning that Khasra No. 734 is land notified as ‘industrial development area’ under Section 2 (d) of the U.P. Industrial Area Development Act, 1976. It is flood plain zone of river Yamuna and whereupon the petitioners were found raising illegal constructions. The notice makes reference to Section 10 of the Act and directs the petitioners to forthwith stop further development and remove the constructions made so far, failing which, the same will be demolished by the Authority and the expenses incurred in this behalf shall be recovered from the petitioners as arrears of land revenue. The notice further mentions that in case the petitioners have any sanctioned plan or rely on any other document, it shall be open to them to file their reply within fifteen days, failing which, it will be assumed that the petitioners have nothing to say in the matter. 4. The petitioners being aggrieved by the said notice approached this Court by way of Writ (C) No. 692 of 2022 contending that the constructions are old and were made prior to constitution of the NOIDA Authority in the year 1976. It was also the case of the petitioners that they had already replied to the demolition notice, but without deciding the same, the NOIDA Authority was threatening to demolish the constructions. The writ petition was disposed of by an order dated 28.1.2022 with direction to respondent no. It was also the case of the petitioners that they had already replied to the demolition notice, but without deciding the same, the NOIDA Authority was threatening to demolish the constructions. The writ petition was disposed of by an order dated 28.1.2022 with direction to respondent no. 2 to pass a reasoned order, taking into consideration the objections filed by the petitioners. It is in compliance of the said direction that the impugned order has now been passed. 5. The impugned order records as follows: (a) Plot No. 734 is notified as ‘industrial development area’ and is flood plain zone of river Yamuna. (b) The notification of the village in which Khasra No. 734 lies as industrial development area under Section 2 (d) of the Act, was issued on 11.07.1989. No development work in any area notified under Section 2 (d) can be undertaken without the permission of NOIDA Authority. (c) The State Government had issued a Government Order dated 16.3.2010 directing that all unauthorized constructions in flood plain zone be removed forthwith. (d) Tehsildar, Dadari in his report dated 20.4.2022 has mentioned that Khasra No. 734 is recorded as banjar in khatauni of 1427 - 1432 fasali. There is no evidence of the said plot being allotted for agricultural purposes. (e) Since Khasra No. 734 is notified as ‘industrial development area’ and is flood plain zone, therefore, the constructions raised by the petitioners without approval of NOIDA Authority are in clear violation of Section 2 (d) read with Section 10 of the Act. 6. On 21.07.2022, the following order was passed: “Supplementary affidavit filed today is taken on record. It is submitted by Sri Kaushalendra Nath Singh, learned counsel appearing on behalf of Noida Authority that except for a bald plea that constructions were old and raised prior to the area being declared as notified area no evidence in this behalf was led by the petitioners. This was despite the fact that notice specifically mentioned that the petitioners were found raising new constructions without obtaining any permission from the authority. Sri Ashish Kumar Singh, learned counsel for the petitioners seeks time to ascertain whether any evidence was filed by the petitioners before the respondent authority to show that the constructions were old constructions, raised before the area was declared as notified area under the provisions of U.P. Industrial Area Development Act, 1976. List as fresh on 25.07.2022.” 7. Sri Ashish Kumar Singh, learned counsel for the petitioners seeks time to ascertain whether any evidence was filed by the petitioners before the respondent authority to show that the constructions were old constructions, raised before the area was declared as notified area under the provisions of U.P. Industrial Area Development Act, 1976. List as fresh on 25.07.2022.” 7. In compliance of the above order, a supplementary affidavit has been filed in which it is admitted that the petitioners are not having any electricity connection over the premises in question. It is stated that the property is in shape of a Gher and is being used as such. It is also admitted that the property is situated near the river embankment and for this reason, no electricity connection has been provided. No evidence has been filed alongwith the supplementary affidavit to show the extent of constructions or that they were old constructions. 8. It is not disputed before us that after an area has been notified as industrial development area, the occupier thereof is not entitled to raise constructions over it without obtaining permission from the Authority. This is in view of the mandate of Section 9 which stipulates that- no person shall erect or occupy any building in any industrial development area in contravention of any building regulations made under sub-section (2). Regulation 4 of the New Okhala Industrial Development Area Building Regulation, 2010 provides that no person shall erect any building or a boundary wall or fencing without obtaining a prior permission thereof from the Chief Executive Officer or an officer authorised by the Chief Executive Officer for this purpose. Regulation 5 stipulates that any person who intends to erect a building within the industrial development area shall give application in the Form given at Appendix-1 and subject to compliance of the provisions laid down under the Regulations, permission shall be granted/refused. Regulation 20.3 stipulates that in case of unauthorized development, the Chief Executive Officer or an officer authorized by the Chief Executive Officer shall take suitable action which may include demolition of unauthorized work, sealing of premises, prosecution and criminal proceedings against the offenders in pursuance of relevant Acts in force. 9. Before this Court, the petitioners have only raised plea of constructions being old, but no such evidence was filed before the Authority nor even before this Court. 9. Before this Court, the petitioners have only raised plea of constructions being old, but no such evidence was filed before the Authority nor even before this Court. Sri Ashish Kumar Singh, learned counsel for the petitioners fairly admits that there is no evidence with the petitioners to show that the constructions were raised before the area was notified as industrial development area so as to take the same outside the clutches of the Building Regulations framed by the Authority. He, however, submitted that the observation in the impugned order that Khasra No. 734 is recorded as banjar and there is no evidence of settlement of the said land with any person, is an incorrect observation. 10. Mrs. Anjali Upadhya, learned counsel appearing on behalf of NOIDA Authority submitted that the observation is based on a report of Tehsildar, Dadari. It is a mere passing observation and the dispute relating to right, title or interest in the subject land was not decided by the Authority. 11. We find considerable force in her submission. The observation made in the impugned order in respect of subject land being recorded as banjar land and there being no evidence of allotment thereof in favour of any person is not an adjudication made by the Authority qua the rights of the petitioners in the subject land. We therefore clarify that the petitioners are free to get their rights adjudicated in this behalf in appropriate proceedings and wherein the above observation will have no adverse effect. 12. However, as noted above, since the petitioners have failed to prove that the constructions over the subject land were old or were raised prior to the area being declared as Industrial Development Area and also in view of the admitted fact that the subject land is flood plain zone of river Yamuna, we find no illegality in the impugned order in so far as it holds that the constructions raised by the petitioners are illegal and unauthorized and are liable to be demolished. 13. The petition lacks merit and is dismissed subject to the above clarification.