1

AFR

Reserved

Court No. - 21

Case :- WRIT - C No. - 4633 of 2019

Petitioner :- Rajendra Prasad Arora And 2 Others

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Rajendra Kumar Sharma, Ashutosh

Srivastava, S.K. Garg, Shailesh Kumar Yadav

Counsel for Respondent :- C.S.C., Anoop Trivedi, Devi Prasad

Mishra, Vibhu Rai

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Piyush Agrawal,J.

(Delivered by Hon. Pradeep Kumar Singh Baghel, J.)

The petitioners have instituted this writ proceedings for quashing of

the demand notice dated 20

th

September, 2018 issued by the Allahabad

Development Authority, Allahabad (now Prayagraj Development

Authority, Prayagraj)

1

, the second respondent, whereby the petitioners

have been called upon to deposit a sum of Rs.50,62,774.00 for

compounding of their construction, which is commercial, and other

charges.

The relevant facts may briefly be stated: the petitioners are owners

of a part, an area of 285.32 square meter, of Nazul Free hold Site No. 'Z',

Civil Station, Allahabad, which is a part portion of Premises Nos. 14 and

18, New Lal Bahadur Shastri Marg, Allahabad. The said plot was

purchased by the petitioners vide registered sale-deed dated 11

th

December, 2009. The petitioners made an application to the second

respondent for sanctioning of map of the residential accommodation,

which was sanctioned. Later, the petitioners submitted a revised map for

change of use of the building from residential to commercial. Upon the

said application, the second respondent has issued a fresh notice dated 20

th

September, 2018, whereby apart from other fees the compounding fee for

a sum of Rs.21,61,086.00 and the impact fee to a tune of Rs.33,04,148.00

1PDA

2

have been demanded.

The petitioners have averred in the writ petition that the demand

notice has been issued on the ground that it relates to commercial use of

the building and not for sanctioning the building map afresh. It is stated

that demand of impact fee of Rs.33,04,148.00 is totally illegal as it is not

provided anywhere in the Uttar Pradesh Urban Planning and Development

Act, 1973

2

. Similarly, the compounding fee is also arbitrary and illegal.

It is stated that for the area where the petitioners' plot is situated no

zonal development plan has been prepared by the development authority.

It is further stated that Section 9 of the Act contemplates preparation of

zonal development plan in terms of the master plan and the compounding

contrary to the zonal development plan cannot be permitted. Therefore,

unless zonal development plan is sanctioned, compounding fee cannot be

charged. The development authority has not framed any rule prescribing

the rate of imposition of the compounding fee.

It is also stated that the demand of the permit fee, inspection fee and

Malwa fee is illegal and against the judgment of this Court in Smt.

Malti Kaul and another v. Allahabad Development Authority

and another

3

. It is averred that the development fee and betterment fee

have been highly excessive, arbitrary and contrary to the law laid down by

the judgment in the cases of Virendra Kumar Tyagi v. Ghaziabad

Development Authority

4

, Smt. Rekha Rani v. State of U.P. and

others

5

, Smt. Nisha Kumari v. State of U.P. and others

6

, and

Smt. Malti Kaul (supra).

It is averred in the writ petition that there is a nexus between the

local builders and the officials of the development authority in demanding

the arbitrary and illegal demand against the provisions of the Act. The

petitioners have also demanded a free and fair judicial enquiry in this

2Act

3AIR 1995 All 397

4Writ Petition No. 46706 of 1999, decided on 27.10.2005

52014 (1) ADJ 325 (DB) : (2014) 4 UPLBEC 2789

62014 (6) ADJ 20 (DB) : (2014) 3 UPLBEC 2139 : 2015 (1) AWC 339

3

matter, otherwise situation leads to a disastrous development and the

purpose and object of the Act would be defeated.

The petitioners have also prayed that this writ petition be converted

into the public interest litigation as the authorities are arbitrarily

converting the residential areas, which have been earmarked as such in the

master plan, into the commercial area. It is stated in a supplementary

affidavit that there are only nine bungalows remained on the Elgin Road,

which are used purely as residential, and rest of the buildings on the said

road are involved in the commercial activities such as marriage hall,

nursing home, etc. The second respondent has sanctioned the map for the

commercial activities in the residential areas contrary to the master plan.

The details of those commercial buildings have been mentioned in

Paragraph-7 of the supplementary affidavit.

A counter affidavit has been filed on behalf of the second and third

respondents, i.e. the PDA, sworn by the Zonal Officer, Prayagraj

Development Authority, Prayagraj. It is stated in the counter affidavit that

the development fee, stacking fees, mutation charges and water fees are

defined under Sections 2 (ggg), 2 (kk), 2(hhh)(ii) and 2(ll) of the Act

respectively. It is also stated that Master Plan-2021 is currently in force

with effect from 12

th

August, 2006 and the PDA has also framed the zonal

plan for some portion of its development area and it has also framed

building bye-laws, which are known as 'Bhawan Nirman Evam Vikas

Upvidhi 2008

7

' (as amended upto 2016). The Building Bye-laws have

been framed for planned development of the area and so long the zonal

development plans are not prepared under Section 9 of the Act, the

authority with the previous approval of the State Government may make

bye-laws consistent with the Act. The demand of sub-division charges and

other charges have been justified in the counter affidavit. It is further

stated that the compounding bye-laws have been circulated by the State

Government vide order dated 14

th

January, 2010 in the form of model

7Building Bye-laws

4

compounding bye-laws. It was placed before the Board of the PDA for

consideration of the matter in its Board Meeting dated 07

th

May, 2010 and

it was adopted. Hence, no further approval of the State Government is

required. In Paragraph-51 of the counter affidavit it has been admitted that

the zonal development plans are not prepared, hence in view of the

provisions of Section 57(e) of the Act the bye-laws may provide for

approval for division of any site into plots. The Building Bye-laws have

been approved by the Board in its meeting dated 22

nd

December, 2011.

For the sake of convenience, Paragraphs-52, 67 and 68 of the counter

affidavit are reproduced as under:

“52. That, the Allahabad Development Authority,

Allahabad has, with the previous approval of the State

Government, already adopted the Building Bye-laws

in its Board meeting dated 22.12.2011. The Building

Bye-laws contain provisions regarding the division of

any site into plots for the erection of building. Chapter

2.2 of the Building Bye-laws contains provisions for

open spaces (park, etc.) which are required when the

layout plan is sanctioned for sub-division of any site.

Thus sub division of any land can only be carried out

after obtaining permission from the Vice Chairman of

the Authority, in accordance with the provisions of the

Building Bye-laws. A true copy of the relevant portion

of Building Bye-laws, framed by the Allahabad

Development Authority, as referred to above is being

filed herewith and marked as Annexure 'CA-1' to

this Counter Affidavit.

67. That as regards change of the residential area to

the commercial area and approval of the State

Government to such action of the Development

Authority, provision have been made in Section 13 and

section 38-A of the Act.

68.That furthermore Master Plan 2021 and Zone

Plan B-4 permits certain commercial and other

activities in residential area subject to fulfillment of

certain conditions laid down in the Master/Zonal Plan

itself and on payment of impact fees.”

A supplementary counter affidavit has also been filed on behalf of

the PDA. It is stated therein that the Master Plan-2021, which is in force

5

at present, has been amended four times on 11

th

July, 2011, 20

th

June,

2013, 30

th

June, 2015 and 01

st

May, 2018 after following the procedure.

By the amendment dated 11

th

July, 2011 the land use of the land contained

in certain areas have been changed from industrial (Kuteer Udyog) to

residential (R-2). Similarly, by the amendment dated 20

th

June, 2013 the

land use pertaining to Village Abusa and Sarfuddinpur, Prayagraj has been

changed from agricultural to technical/management institution. Vide

amendment dated 30

th

June, 2015 the land use pertaining to Village

Jalalpur Ghosi, Tehsil Sadar, Allahabad has been changed from

agricultural to residential. By the amendment dated 01

st

May, 2018 the

land use pertaining to Village Ravatpur and Jalalpur Ghosi, Tehsil Sadar,

Prayagraj has been changed from agricultural to educational institutions/

technical institutions. In the Master Plan-2021 the city has been divided

into 12 zones and the zones have been further divided into sub-zones.

We have heard Sri Ravi Kant, learned Senior Advocate, assisted by

Sri S.K. Garg and Sri Rajendra Kumar Sharma, learned counsel appearing

for the petitioners, and Sri Anoop Trivedi, learned Senior Advocate,

assisted by Sri Vibhu Rai, learned Advocate, for the second and third

respondents- PDA.

Sri Ravi Kant, learned Senior Counsel appearing for the petitioners,

has submitted that the PDA has failed to prepare the zonal development

plan even after lapse of 13 years. Only one zonal development plan for

one zone has been prepared recently, that too is contrary to the master

plan. He has invited our attention to the Master Plan-2021, Table No. 9.1

at Page 30, to demonstrate that 36.11 per cent land is earmarked for

residential areas and only 2.43% area is shown for commercial activities.

This ratio has been drastically changed in the zonal development plan of

Zone B-4, which has been prepared, wherein commercial area has been

arbitrarily increased to 12%, which is unreasonable and illegal.

He has also invited our attention to the zonal development plan for

Zone B-4, wherein it is mentioned that in civil lines zone there are already

6

several shopping and commercial establishments to cater the need of the

residents of the zone, hence there is no need to allow commercial

activities in the residential areas under the garb of the mixed zones.

It is next urged that the concept of mixed zone is contrary to the

master plan having regard to the fact that in Zone B-4 there are several

markets, hotels, big-bazar and several shopping complexes. He has drawn

our attention to Page 12 of the zonal development plan, wherein this fact

is recorded. He has further urged that in larger interest of the city this

Court can examine the other issues relating to planned development of the

city. The Court has summoned the records and sufficient opportunity has

been furnished to the respondents, therefore, the Court can examine the

issue regarding mixed zone and changing residential areas to mixed area,

which is contrary to the master plan.

It is submitted that under Article 226 of the Constitution this Court

has ample power to examine the legality of the action of the development

authority if it is found that its action is against the provisions of the Act.

Sri Anoop Trivedi, learned Senior Counsel appearing for the PDA,

has submitted that it is true that the zonal development plan for only one

zone has been prepared in 2011 but under Section 57(e) of the Act the

development authority has power that so long the zonal development

plans are not prepared, the development can be made in terms of the bye-

laws. He has justified the imposition of various charges such as permit

fee, inspection fee, malwa fee, development fee and betterment fee. He

has submitted that the issue with regard to some of the above mentioned

charges is pending before the Supreme Court, hence it would be

appropriate to wait the judgment of the Supreme Court in respect of those

charges.

Sri Trivedi has very fairly submitted that he has no explanation to

offer in respect of the inordinate delay in preparing the zonal development

plans in terms of Section 9 of the Act.

7

Sri Anoop Trivedi with the help of the Town Planner, who is present

in the Court, has placed before us the original records, master plan, one of

the zonal development plans and various other records.

Before we advert to the rival submissions advanced at the Bar, we

think it appropriate to examine the relevant statutory provisions at play in

the instant case.

The Act i.e. the Uttar Pradesh Urban Planning and Development

Act, 1973 was enacted with an object for the development according to

plan of the area, which is declared as development area. Chapter II of the

Act deals with declaration of the development areas, constitution of the

development authority, etc.. Section 7 under Chapter II of the Act

enumerates the objects of the authority, it provides that the object of the

authority shall be to promote and secure the development of the

development area according to the plan and to execute works in

connection with supply of water and electricity, to dispose of sewage and

to provide and maintain other services and amenities.

Chapter III of the Act deals with the Master Plan and Zonal

Development Plan. The provisions under this chapter of the Act are

material for our purposes. Section 8 of the Act provides for master plan

for the development area. It lays down that the development area shall be

divided in various zones indicating the manner in which the land in each

zone is proposed to be used. It also provides that the master plan shall be

a basic pattern of the framework within which the zonal development

plans of various zones may be prepared. Section 8 of the Act reads thus:

“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

8

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 plan 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.”

Section 9 of the Act deals with zonal development plans. Under

Section 8 the master plan provides a basic pattern within which the zonal

development plans are prepared. It gives more details about the land uses

proposed in the zones, such as, public buildings, industry, business,

markets, schools, hospitals and open spaces, etc. The zonal development

plan is to be prepared simultaneously with the master plan or soon

thereafter. Section 9 of the Act 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) show every area in the zone which may, in the

opinion of the Authority, be required declared for

development or re-development; and

9

(d) in particular, contain provisions regarding all or

any of the following matters, namely—

(i) the division of any site into plots for the

erection of buildings;

(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;

*** *** ***

(vii) the number of residential buildings which

may be erected on plot or site;

****** ***

(ix) the prohibitions or restrictions regarding

erection of shops, workshops, warehouses or

factories or buildings of a specified

architectural feature or buildings designed for

particular purposes in the locality;

*** *** ***

(xi) the restrictions regarding the use of any site

for purposes other than erection of buildings;”

Section 11 of the Act enjoins the procedure to be followed in the

preparation and approval of the master plan and the zonal development

plan. It says that the authority shall prepare a plan in draft and publish it

inviting suggestions/ objections from the residents with respect to the

draft plan. Similar opportunity is to be given to the local authorities. After

considering all the objections, suggestions and representations received by

the authority, a final plan is prepared and is submitted to the State

Government for its approval. Once the plan is approved by the State

Government, the plan comes into operation. Chapter III-A of the Act

provides for the arterial roads in development area. Chapter IV of the Act

deals with amendment of the master plan and the zonal development plan.

Section 13 of the Act says that the authority may make any amendment in

the master plan or the zonal development plan, but it shall not effect the

10

important alterations in the character of the plan and which do not relate

to the extent of land uses or the standards of population density. The State

Government also can make the amendments in the master plan or zonal

development plan. Sub-section (3) of Section 13 provides that before

making any amendment in the plan, the State Government or the

authority, as the case may be, shall publish a notice in at least one

newspaper having circulation in the development area inviting objections

and suggestions in respect of the proposed amendment from the residents.

Similarly, if the authority makes any amendment in the plan, it shall report

to the State Government the full particulars of such amendments within

the stipulated period i.e. thirty days.

Chapter V deals with development of the land. Basically this

chapter is meant for sanctioning of the maps for the residential and

commercial activities. Section 14 prohibits that no development of the

land shall be undertaken by any person or body unless permission for

such development has been obtained in writing from the Vice-Chairman.

Section 15 of the Act provides the procedure for permission. Chapter VI

of the Act deals with acquisition and disposal of the land. Chapter VII

provides for finance, accounts and audit. Chapter VIII provides for

supplemental and miscellaneous provisions. Section 26 prescribes the

penalties. Section 27 provides for order for demolition of building.

Section 28-A gives power to seal such buildings and Section 32 speaks for

composition of offences. The other provisions under this Chapter deal

with assessment of betterment charges, additional stamp duty, toll for

amenities, mode of recovery. Section 41 enumerates the power of control

by the State Government.

A perusal of Sections 8 and 9 of the Act shows that the master plan

and the zonal development plans are inter dependent. The master plan is a

basic pattern of the framework, which indicates that a development area/

city shall be divided in various zones and the manner in which the land in

each zone is proposed to be used. Section 9 enjoins that the zonal

11

development plans shall be prepared simultaneously with the master plan

or as soon as may be thereafter for the reason that the master plan broadly

lays down the use of the land in each zone. It also indicates the manner in

which the land is to be utilized in each zone. Thus, the master plan only

provides to define the various zones, into which the development area

may be divided for the purpose of development. It serves as basic pattern.

The other details such as industry, business, markets, schools, hospitals,

open spaces, etc. are not provided in the master plan but it is provided in

the zonal development plans. Thus, from the scheme of the Act it is

evident that the master plan and the zonal development plans are

complimentary to each other. Without zonal development plan the main

object of the provisions of the Act will be frustrated as the open spaces,

markets, residential areas and other public works utilities are not provided

in the master plan. The zonal development plan contains a site plan which

indicates the existence of the land use proposed in the zone regarding

markets, business and housing, etc., but it cannot change the manner

indicated in the master plan in each zone. If the master plan indicates that

a portion of the area has to be utilized for residential or commercial, that

cannot be altered in the zonal development plan. In any view of the

matter, the zonal development plan cannot override the master plan. The

development is to be done within the manner indicated in the master plan.

Learned counsel for the PDA has produced the Allahabad Master

Plan-2021 and the Zonal Development Plan, Zone B-4 prepared under the

Master Plan-2021, which have been taken on the record with the consent

of learned counsel for the parties.

The current master plan for the Allahabad/ Prayagraj has been

approved by the State Government under Section 12 of the Act on 13

th

July, 2006 and the notice has been published stating therein that the State

Government has approved the master plan and the plan has come into

operation.

The PDA in its Board meeting dated 23

rd

July, 2003 proposed the

12

Draft Master Plan-2021 and the objections were invited by public notice

published in the Northern India Patrika. The Board in its meeting held on

13

th

October, 2005 finalized the Master Plan and it was sent for approval

to the State Government. In the master plan, which is on the record, it is

clearly mentioned that in the last ten years more than 50 land uses have

been changed by the development authority and the matter has been

referred to the State Government. The change of the land use is in respect

of about 200-250 hectares, which indicates that not only the PDA but the

private builders also have illegally and unauthorisedly made the

development contrary to the master plan. The relevant part of the Master

Plan-2021 under its Part-1, Paragraph '2.0 Mahayojna ka Mulyankan' is

extracted below:

“--- bl fo'ys"k.k ls ;g Li"V gS fd u dsoy bykgkckn

fodkl izkf/kdj.k }kjk cfYd futh fcYMlZ@ dksyksukbtlZ

}kjk Hkh Hkw&mi;ksxksa ds foijhr vuf/kd`r fodkl fd;k x;k

gSA blds vfrfjDr orZeku ifjizs{; esa bykgkckn iqujhf{kr

egk;kstuk&2001 ls lEcaf/kr rF;ksa dk foLr`r foospu u;h

egk;kstuk cukus dk vkSfpR; lqLi"V djrk gS] ftldk

fooj.k v/kksfyf[kr izLrjksa esa fn;k x;k gSA”

In the master plan, Table No. 3.1 deals with comparison of land use

in the earlier Master Plan-2001 and the current master plan. In the Master

Plan-2001 the total proposed area was 21,689.53 hectares, out of which an

area of 7622.24 hectares i.e. 35.14% of the total was earmarked for

residential area; the commercial area was only 545.43 hectares i.e. 2.51%;

industrial area was 1217.81 hectares i.e. 5.61%; for office the area was

1871.09 hectares i.e. 8.63%; and park/open space was 1541.40 hectares

(7.11%). For the sake of convenience, Table No. 3.1 given at page-11 of

the Master Plan-2021 is reproduced below:

“rkfydk la[;k&3-1

iwoZ egk;kstuk esa izLrkfor ,oa orZeku Hkw&mi;ksxksa dk

rqyukRed fooj.k

lEiw.kZ uxj {ks= {ks=Qy (gsDVs;j esa)

dz0

la0

Hkw&mi;ksxiwoZ

egk;kstuk esa

izLrkfor

izfr'krorZeku Hkw&

mi;ksx o"kZ

2002

izfr'krvUrj

¼vfodflr

{ks=½

izfr'kr

13

Hkw&mi;ksx

o"kZ 2001

¼fodflr

{ks=½

1 2 3 4 5 6 7 8

1-vkoklh; 7622-2435-145831-4661-91&1790-78&14-59

2-O;kolkf;d545-432-51393-684-18&151-75&1-24

3-m|ksx 1217-815-61482-805-13&735-01&5-99

4-dk;kZy; 1871-098-63315-443-35&1555-65&12-68

ddk;kZy; 335-091-54315-443-35&19-650-16

[kvifjHkkf"kr

{ks=

1536-007-08 & &&1536-00&12-52

5-ikdZ@[kqys

LFky

1541-407-11140-141-49&1401-26&11-42

6-dqEHk esyk921-084-25 & &&921-08&7-51

7-lkaLd`frd ,oa

/kkfeZd LFky

69-000-3219-000-20&50-00&0-41

8-LkkoZ0 ,oa v)Z

lkoZ0 lqfo/kk;sa

571-242-63607-846-4536-600-30

df'k{kk 495-522-28524-605-5729-080-24

[kLokLF; 75-720-3583-240-887-520-06

9-LkkoZ0

mi;ksfxrk,a

,oa lsok;sa

1660-537-6639-370-42&1621-16&13-21

10-;krk;kr ,oa

ifjogu

2434-8011-231588-7616-87&846-04&6-89

11-vU; mi;ksx3234-9114-91 & &&3234-91&26-36

;ksx 21689-53100-009418-49

¼43-42%½

100-0012271-04

¼56-58%½

100-00”

Table No. 10.7 of the Master Plan-2021 has divided the residential

area in the low density area, medium density area and high density area.

Likewise, the commercial area has also been divided in retail business,

wholesale business, district center, warehouse, etc.

In the entire counter affidavit filed on behalf of the PDA sworn by

the Zonal Officer it has not been mentioned that when the Master Plan-

2021 has been approved by the State Government nor the date of

commencement of the zonal development plan has been mentioned.

However, to the specific query of the Court, in the supplementary counter

affidavit it is mentioned that the State Government has approved the

Master Plan-2021 on 13

th

July, 2006.

14

On 26

th

August, 2019 during the course of hearing when the Court

was apprised that the Master Plan-2021 was enforced in the year 2006 but

the zonal development plan is yet to be prepared, the PDA was directed to

file a better affidavit indicating the following facts:

“After hearing learned counsel for the parties we deem

it appropriate to direct the development authority to

file an affidavit indicating the following facts:

(1) If the Master Plan of the Allahabad (now

Prayagraj) has been amended, the order of the State

Government/ development authority be brought on the

record giving the detail of the procedure adopted for

the said amendment.

(2) It is stated that the Zonal Plan has been approved

only in respect of one zone i.e. Zone B-4(1). There are

total 7 zones in Allahabad. Zone-B has five sub-zones.

However, the Zonal Plan for one of the sub-zones B-4

has been prepared. Regard may be had to the fact that

Section 9 of the Uttar Pradesh Urban Planning and

Development Act, 1973 requires that zonal plan

should be prepared simultaneously with the master

plan or as soon as possible. The respondent-

development authority shall furnish the reason for the

delay of more than five years and shall also state that

under which Zonal Plan the maps in respect of the

residential and commercial areas have been sanctioned

between 2006, when the Master Plan was notified, and

2011, when the Zonal Plan for one of the sub-zones B-

4(1) has been notified. During this period how the

maps have been sanctioned in absence of zonal plan?

(3) When the Zonal Plan in respect of the entire city

shall be prepared?

(4) Learned counsel for the development authority has

apprised us that the State Government vide various

Government orders has permitted the change of the

land use. All the orders of the State Government

changing the land use be brought on the record.

The aforesaid facts be brought on the record by way of

a counter affidavit sworn by the Vice-Chairman/

Secretary of the development authority.”

In compliance with the said order, a supplementary counter

affidavit has been filed on behalf of the PDA sworn by the Secretary of

15

the PDA. In the supplementary counter affidavit it is mentioned that the

Master Plan-2021, which is in force, has been amended four times i.e. on

11

th

July, 2011, 20

th

June, 2013, 30

th

June, 2015 and 01

st

May, 2018 after

following the procedures. It is mentioned in the supplementary affidavit

that by the amendment dated 11

th

July, 2011 the land use of the land

contained in Mauzas (Villages) Sulem Saray, Harwara and Jayrampur,

Tehsil Sadar, District Allahabad have been changed from Industrial

(Kuteer Udyog) to Residential (R-2). Similarly, by the amendment dated

20

th

June, 2013 also the land use has been changed from agricultural to

technical/ management institution and by the amendment dated 30

th

June,

2015 the land use has been changed from agricultural to residential. Vide

amendment dated 01

st

May, 2018 the land use has been changed from

agricultural to educational institutions/ technical institutions. It is also

mentioned that the current master plan was prepared in 2006 and it is still

in operation till 2021.

It is further averred in the supplementary counter affidavit that in

the Master Plan-2021 the city has been divided into 12 zones. It is also

averred that the zones have been further divided into sub-zones. Sub-Zone

4 is having an area of 606.40 hectares. However, the zonal development

plan could be prepared for only one sub-zone i.e. B-4, which has been

approved on 07

th

March, 2011. For the sake of clarity, Paragraph-13 of the

supplementary counter affidavit is quoted below:

“13. That it is stated that the present Master Plan

2021 has been approved by the State Government on

13.07.2006. It is stated that though there are 12 zones

in which the city has been divided however the zonal

development plan could be prepared on only one sub-

zone i.e. B-4 which has been approved on 7.3.2011.”

In Paragraph-18 of the supplementary counter affidavit it is stated

that the zonal development plan is highly technical process but still the

authority is under process for completing two more zonal development

plan of Zone- 'I' & 'J'. Paragraph-18 of the supplementary counter

affidavit is also reproduced below:

16

“18. That further the zonal plan which is highly

technical process but still the authority is under

process for completing two more zonal development

plan of zone 'I' & 'J'.”

From the aforesaid averments made in the supplementary counter

affidavit it is evident that although the master plan has been sanctioned by

the State Government on 13

th

July, 2006, the zonal development plan

except for one zone has not been prepared. Even the only zonal

development plan, which has been prepared, was approved on 07

th

March,

2011 i.e. after about five years and in respect of rest 11 zones there is no

zonal development plan of the development area and all the development

works are carried out or are still in progress or have been made without

any development plan since 2006 onwards i.e. about 13 years.

Pertinently, in a public interest litigation, being Public Interest

Litigation (PIL) No. 67235 of 2014 (Ashok Kumar and others

v. Nagar Nigam Allahabad and others), the issue with regard to

increased commercialization in the residential areas cropped up. A

Division Bench of this Court, after furnishing opportunity to the

respondents therein, vide order dated 01

st

September, 2016 has observed

that approval of maps for construction of non-residential buildings is

given only on the basis of width of the road and no impact assessment has

been made before sanctioning of the map. It was mentioned that while

sanctioning a new project the development authority has to consider the

viability and compatibility in the area in question and whether the existing

municipal facility and infrastructure were sufficient to warrant the

creation of additional commercial or mixed use establishment. In this

regard certain directions were issued to the development authority. The

relevant part of the order is extracted below:

“...ADA had been required to disclose the nature

of the impact assessment study, which it undertook, if

at all, before the sanctioning of maps. The impact

assessment which was envisaged by this Court was

with respect to an empirical exercise being undertaken

by the Authority while sanctioning a new project

17

bearing in mind its viability and compatibility in the

area in question and whether the existing municipal

facilities and infrastructure were sufficient to warrant

the creation of an additional commercial or mixed use

establishment. An impact assessment of a new

structure cannot be said to have been achieved on the

back of mere NOC's being obtained from other

departments. When the Authority proceeds to accord

permission to a particular plan, it is presumed to have

assessed the viability of the project coming up in the

area concerned. This would necessarily entail a study

with regard to the number of additional units or

persons who would occupy the area, the additional

burden on existing infrastructure in the area, whether

the existing facilities would sustain the creation of

new buildings and structures and other allied aspects.

Unfortunately we note that no such exercise is

presently undertaken by the ADA nor does such a

study appear to precede its decision to sanction a new

project. It was in the above backdrop that we had

called upon the ADA to disclose on affidavit the

reasons and justifications for the proposed change of

user of residential pockets in the city to either

commercial or mixed use purposes. We find that the

disclosure made fails to address these issues and we

would perhaps be justified in recording our conclusion

that no impact assessment is actually undertaken by

it.... The sanction of a map in our opinion would

necessarily involve an examination of the project both

from a micro as well as macro angle. Merely because

a particular area is earmarked as commercial or for

mixed use does not empower the Authority to permit

the creation of any number of new structures without

an empirical impact assessment being undertaken. We

therefore, direct the Chief Town Planner as well as the

Vice Chairperson of the ADA to forthwith formulate

appropriate guidelines for impact assessment which

must be undertaken before the sanction of a map. The

draft guidelines shall be placed upon the affidavit of

the Vice Chairperson before this Court on the next

date fixed. We further put the Authority to notice to

comply with the earlier directions issued by the Court

on 27 May 2016 and 14 July 2016 and file a complete

and full disclosure in respect of the issues which have

remained unanswered. The Vice Chairperson, shall

while filing his affidavit also bring on record the

interpretation which the Authority seeks to accord to

18

Bye-law 1.2.26 in respect of sanction of maps for

residential, commercial and mixed use constructions.”

The Chief Town Planner, who was present in the Court with the

record to assist us along with Sri Anoop Trivedi, learned Senior Counsel

appearing for the PDA, has failed to satisfy us regarding compliance of

the directions issued by the Division Bench in the above mentioned case

of Ashok Kumar (supra). Moreover, from the material on the record

and the original record, which was produced before us, we find that there

is no material to demonstrate that the said direction has been complied

with by the development authority. A large number of multi-storied

buildings, hospitals, showrooms, banks and other commercial activities

have been sanctioned by the development authority in the last few years

indiscriminately in the residential areas without any impact assessment.

Recently, a Division Bench of this Court, presided over by Hon'ble

the Chief Justice, in a writ petition, being Misc. Bench No. 22182 of

2019, Smt. Radha Rani Singh v. State of U.P. and others, vide

order dated 16

th

September, 2019 has found that the Lucknow

Development Authority has also failed to prepare the zonal development

plans as provided under Section 9 of the Act. The Division Bench in the

said case has observed as under:

“The non-preparation of the zonal plan for more

than 50 years is clearly a case of frustrating the

mandate cast by the 1973 Act. This Court cannot

overlook the fact that the 1973 Act casts a duty on the

development authorities which have to be discharged

in terms of the mandate and not doing so for a period

of 46 years, cannot be accepted.”

The Division Bench has issued directions to all the development

authorities in the State of Uttar Pradesh, which are governed under the

provisions of the Act, in the following terms:

“...In view of the statutory provisions, the facts

brought before us as well as the judgment of the Apex

Court in the case of Chairman, Indore Vikas

19

Pradhikaran

8

(supra), we issue the following

directions at this stage:

(i) The development authorities in the entire

State of Uttar Pradesh shall take steps for preparation,

its finalization and approval of the Master Plan of all

the development areas notified till date, if not already

done.

(ii) All the development authorities in the State

of Uttar Pradesh shall initiate the steps for preparation

of the zonal plan for all the development areas in

accordance with the procedures specified in the Act

and in consonance with Section 9 of Uttar Pradesh

Urban Planning and Development Act, 1973 within a

period of one year from today. The Urban Planning

Department of the State of Uttar Pradesh shall ensure

the compliance of the directions given above and it

shall be the duty of the Secretary, Urban Planing

Development to ensure that the directions given by us

are complied with within the specified time frame.

(iii) The Secretary, Urban Development, State of

Uttar Pradesh, is directed to file a report with regard to

steps taken in pursuance to the directions given above

by the next date.”

Mixed Area:

As can be seen from the master plan of the city of Prayagraj, there

is no provision in the master plan for the mixed use of the land. In other

States in some of the master plans there are provisions for the concept of

mixed use but that is also based on subject to socio-economic status of the

neighbourhood and in case the mixed area is allowed in the residential

areas, the environmental impact and providing of safe and convenient

circulation and parking are also taken into consideration. One of the main

objects to allow such mixed use is to allow access to commercial activity

in the proximity of the residential area and to reduce the need for the

travelling across the zone in the city. While allowing mixed area, the

associated adverse impacts relating to traffic congestion, increased

parking and increased pressure on civic amenities have also to be taken

8Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals Limited and others,

(2007) 8 SCC 705

20

into consideration.

The affidavits filed on behalf of the PDA and the original records

produced before the Court do not show that any such impact has been

considered by the PDA, with the result that in most of the residential areas

the residents are made to suffer due to traffic congestion and pollution in

their area on account of the commercial activities.

It is also significant to mention that initially in the residential areas

there was no permission to carry out the commercial activities. The people

have built their houses in the residential areas for peaceful living in proper

environment. If indiscriminate permission is granted under the fresh

decision taken by the development authority on the ground of mixed area

and in the residential areas the commercial activities are allowed, it would

not be safe for the children of the residential areas to come out from their

houses as in their neighborhood, where the commercial activities are

allowed, a large number of vehicles will ply with the result that the

children will have to be indoor for the entire day for their safety. This will

adversely affect their proper development and health.

In addition to safety of the children, the senior citizens of the

residential areas would also suffer. There would be an environmental

impact on the quality of air in the area due to movement of the cars, two

wheelers and other vehicles. The mixed zone can be allowed in those

cities where the residents have to cover a long distance for the purposes of

shopping of essential commodities and as such, even in the master plan

where mixed area is allowed, only a limited shops of the public utility

such as petty general merchant shops, stationary, milk booth, STD/ fax/

internet centres/ATMs, hair-dressers and beauty parlours, bakery and

sweetmeat, mutton stalls, small repairing centres of electrical and

mechanical items, etc. are allowed.

Regard may be had to the fact that in Civil Lines (B-4 Zone) it is

mentioned that a large number of commercial facilities like malls,

21

shopping centers, etc. are existing. The relevant part of Chapter-2 of the

Zonal Development Plan, Zone B-4, at its page-12 under Paragraph-2.1.4

is extracted below:

“2-1-4 O;olkf;d

egk;kstuk esa lkekU; O;olk; ,oa uxj@ftyk dsUnz ds

vUrxZr 64-53 gsDVs;j Hkwfe vkjf{kr dh xbZ gS] ftlds lkis{k orZeku

esa 29-80 gsDVs;j Hkwfe fodflr dh tk pqdh gSA orZeku esa flfoy

ykbUl tksu esa izeq[k :i ls fcx cktkj] flVh Lvkby rFkk fo'kky

esxk ekVZ lkyklj ,oa ih0oh0vkj0 eky vkfn vR;k/kqfud lqfo/kkvksa

ls ;qDr izfr"Bku fo+|eku gSA mijksDr ds vfrfjDr bl {ks= esa dbZ

cMs+ gksVy] jsLVksjsUV ,oa vusd O;kolkf;d izfr"Bku Hkh fLFkr gSA”

As discussed above, the master plan of Allahabad/ Prayagraj does

not envisage the mixed area in the residential areas. The zonal

development plan has not been prepared for the entire city. The zonal

development plan has been prepared for only one zone i.e. Zone B-4,

wherein the commercial area is shown to be 12%, whereas the total

commercial area in the master plan of the city is 2.4%.

It is significant to mention that Table No. 10.1 of the master plan

indicates, amongst other, total zonal area, residential area in the zone,

population in the zone and the average population density which are also

relevant for the issue at hand. The total area of the main city has been

shown to be 13249.02 hectares, its residential area is 5270.48 hectares,

population is shown to be 950000 and the density of the population is 72.

In Zone-A total area is shown to be 639.00 hectares, residential area is

343.00 hectares, its total population is 69900 and population density is

109; in Zone-B total area is 2531 hectares, residential area is 1051.78

hectares, population is 180400, density is 71; in Zone-C total area is

given as 822.00 hectares, residential area is 426.00 hectares, its

population is 82300 and density is 100; in Zone-D total area is 1005.00

hectares, residential area is 269.00 hectares, its population is 44800 and

density is 45. The population density in these zones clearly indicate that

these are the high density areas. In such situation if the commercial

activities are allowed in high density and medium density areas, there

22

would be serious impact on the environment and the residents of these

areas shall suffer due to environmental problems. The most adversely

affected persons will be the senior citizens and the children, who would

not be able to move freely even in front of their houses due to haphazard

traffic and movement of the vehicles in their neighborhood due to

commercial activities.

Our attention has been drawn to the provisions of Section 26-D of

the Act, which provides penalty for not preventing encroachment. This

Section has been inserted by Section 7 of the U.P. Act No. 3 of 1997.

Section 26-D of the Act reads as under:

“26-D. Penalty for not preventing

encroachment.—Whoever specially entrusted with

the duty to stop or prevent the encroachment or

obstruction under this Act or any other Act, rules or

bye-laws wilfully or knowingly neglects or

deliberately omits to stop or prevent such

encroachment or obstruction shall be punishable with

simple imprisonment for a term which may extend to

one month or with fine which may extend to ten

thousand rupees or with both.”

From a perusal of the said section it is evident that if the official,

who is entrusted with the duty to prevent the encroachment or obstruction,

fails to stop or prevent encroachment, he/she shall be punishable with the

simple imprisonment or fine.

We have asked the learned Standing Counsel and the learned

counsel for the PDA that after insertion of the said section whether final

action in terms of Section 26-D of the Act has been taken, we are

informed that not even in a single case action against the officials, who

neglects to prevent or stop encroachment or obstruction, has been taken.

The intention of the Legislature in inserting Section 26-D in the Act

in the year 1997 appears to be to fix the responsibility on the official(s),

who fails to perform his duty. One of the objects of this section is for the

deterrence that if the encroachments or the illegal constructions are

23

checked at the very initial stage, in that event no further consequential

action such as sealing of the building or demolition will be necessary. As

observed by the Supreme Court in the above mentioned cases, the

encroachment and illegal constructions in haphazard way cannot be

possible without the connivance of the State officials. We are surprised to

note that although the State has carried out a demolition drive in this city

and the other parts of the State rigorously and a spate of writ petitions

have been filed in this Court against the order of demolition, yet the

provisions of Section 26-D have not been resorted to. This fact itself

indicates that a large number of illegal constructions have been allowed to

take place, which has necessitated for the demolition but no action in

terms of Section 26-D of the Act has been taken by the State. If the

Legislature has amended the Act and has provided the penalty, it cannot

be frustrated by the inaction on the part of the State and its functionaries.

The inaction on the part of the State functionaries to take recourse to

Section 26-D of the Act against the erring officials has made the said

provision redundant and meaningless. The object of the Legislature

cannot be frustrated by the casual approach of the State functionaries by

ignoring the negligence on the part of its officials, who have failed to

perform their statutory duties cast upon them under Section 14 of the Act.

In our opinion, if an illegal construction is raised without sanction

of the map, the State and the development authorities should take note of

Section 26-D of the Act and the corresponding responsibility should be

fixed against the erring official in whose period the illegal construction

was allowed to be raised and appropriate action in term of Section 26-D

of the Act be taken against the official concerned.

In addition to Civil Lines, there are other big markets in this city

such as Katra, Chowk, Jonhstonganj, Khuldabad, Govindpur, Teliyarganj,

Sulem Sarai, Mundera, Rajapur, Mutthiganj, etc. These commercial areas

are situated within a short distance from each other and it hardly takes 5-

10 minutes to reach these markets. For instance, one of the oldest

24

shopping places i.e. Civil Lines and Katra market are situated hardly at a

distance of 1 Km.; distance from Katra to Teliyarganj is less than 2 Kms.;

Civil Lines to Jonhstonganj is barely 1 Km.; distance between Civil Lines

and Chowk is less than 1 Km.. The entire area of Rajapur is commercial.

In such background, the decision of the PDA to further allow the mixed

area in the residential areas is unreasonable and unjustified. It shall have a

serious environmental impact on the residents of the residential areas

especially on the health of the senior citizens and the children, who will

be affected by the pollution. Hence, in our opinion, having regard to the

harsh ground level reality in the city of Prayagraj no further commercial

activities should be allowed in the residential areas.

The Supreme Court in a long line of decisions has considered the

impact of violation of the master plan and the commercial activities in the

residential areas.

In R.K. Mittal and others v. State of Uttar Pradesh and

others

9

the Supreme Court in Paragraphs-56, 58, 68 and 72 has observed

as under:

“56. The running of a bank or a commercial

business 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. We see no power vested in the

Development Authority to permit such user and ignore

the misuse for such a long period.

*** *** ***

58. The conduct of the authorities, prior to

institution of the writ petitions in the High Court,

showed uncertainty and wavering of mind in its

decision-making processes. In fact, it was expected of

the Development Authority to take a firm and final

decision and put at rest the unnecessary controversy

raised by its proposal. However, once the writ

petitions were filed, thereafter, the stand of the

Development Authority has been consistent and

unambiguous. In the counter affidavit filed in this

9(2012) 2 SCC 232

25

Court, it has been stated that even in case of grant of

permission to the above stated two banks, no extension

was granted and in fact show cause notices have been

issued to all the banks in the residential sector to wind

up their activities and move out of the residential

sector. It is the definite case of the Development

Authority that banking activity is a commercial

activity and therefore, cannot be carried on in the

residential sector, more particularly on the plots in

question. In regard to Sector 19, a specific averment

has been made in the affidavit of the Development

Authority that the land use is residential alone and is

neither commercial nor mixed. As per the Master Plan,

its primary use is “residential” where plots are planned

for residential purpose alone. It is, therefore,

abundantly clear from the pleadings on record that

commercial activity of any kind in the residential

sector is impermissible. These pleadings are in

conformity with the statutory provisions and the

Master Plan.

*** *** ***

68. 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 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.

*** *** ***

72. From the above dictum of this Court, it is

clear that environmental impact, convenience of the

residents and ecological impact are relevant

considerations for the Courts while deciding such an

issue. 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. There is not even an iota of

reason stated in the affidavits filed on behalf of the

Development Authority as to why the public notice

had been issued without amending the relevant

provisions that too without following the procedure

prescribed under law.”

26

In Machavarapu Srinivasa Rao and another v.

Vijayawada, Guntur, Tenali, Mangalagiri Urban Development

Authority and others

10

the Supreme Court has held thus:

“20. An analysis of the above noted provisions

shows that once the master plan or the zonal

development plan is approved by the State

Government, no one including the State Government/

Development Authority can use land for any purpose

other than the one specified therein. There is no

provision in the Act under which the Development

Authority can sanction construction of a building, etc.

or use of land for a purpose other than the one

specified in the master plan/zonal development plan.

The power vested in the Development Authority to

make modification in the development plan is also not

unlimited. It cannot make important alterations in the

character of the plan. Such modification can be made

only by the State Government and that too after

following the procedure prescribed under Section

12(3).”

The Supreme Court in the case of Dipak Kumar Mukherjee v.

Kolkata Municipal Corporation and others

11

has held in

Paragraphs- 2 of the judgment in the following terms:

“2. In the last four decades, the menace of

illegal and unauthorised constructions of buildings and

other structures in different parts of the country has

acquired monstrous proportion. This Court has

repeatedly emphasized the importance of planned

development of the cities and either approved the

orders passed by the High Court or itself gave

directions for demolition of illegal constructions as in

K. Ramadas Shenoy v. Town Municipal Council,

Udipi

12

, Virender Gaur v. State of Haryana

13

, Pleasant

Stay Hotel v. Palani Hills Conservation Council

14

,

Cantonment Board, Jabalpur v. S.N. Awasthi

15

,

Pratibha Coop. Housing Society Ltd. v. State of

10(2011) 12 SCC 154

11(2013) 5 SCC 336

12(1974) 2 SCC 506

13(1995) 2 SCC 577

14(1995) 6 SCC 127

151995 Supp (4) SCC 595

27

Maharashtra

16

, G.N. Khajuria v. DDA

17

, Manju Bhatia

v. NDMC

18

, M.I. Builders (P) Ltd. v. Radhey Shyam

Sahu

19

, Friends Colony Development Committee v.

State of Orissa

20

, Shanti Sports Club v. Union of

India

21

and Priyanka Estates International (P) Ltd. v.

State of Assam

22

.”

In M.C. Mehta v. Union of India and others

23

the Supreme

Court in Paragraphs- 46 and 51 of the judgment has held as under:

“46. In the present case, the land cannot be

permitted to be used contrary to the stipulated user

except by amendment of the master plan after due

observance of the provisions of the Act and the Rules.

Non taking of action by the Government amounts to

indirectly permitting the unauthorized use which

amounts to the amendment of the master plan without

following due procedure.

*** *** ***

51. The growth of illegal manufacturing activity

in residential areas has been without any check and

hindrance from the authorities. The manner in which

such large scale violations have commenced and

continued leaves no manner of doubt that it was not

possible without the connivance of those who are

required to ensure compliance with law and reasons

are obvious. Such activities result in putting on extra

load on the infrastructures. The entire planning has

gone totally haywire. The law abiders are sufferers. All

this has happened at the cost of health and decent

living of the residents of the city violating their

constitutional rights enshrined under Article 21 of the

Constitution of India. Further, it is necessary to bear in

mind that the lawmakers repose confidence in the

authorities that they will ensure implementation of the

laws made by them. If the authorities breach that

confidence and act in dereliction of their duties, then

the plea that the observance of law will now have an

adverse effect on the industry or the workers cannot be

allowed. Within the framework of law, keeping in

16(1991) 3 SCC 341

17(1995) 5 SCC 762

18(1997) 6 SCC 370

19(1999) 6 SCC 464

20(2004) 8 SCC 733

21(2009) 15 SCC 705 : (2009) 5 SCC (Civ) 707

22(2010) 2 SCC 27 : (2010) 1 SCC (Civ) 283

23(2004) 6 SCC 588

28

view the norms of environment, health and safety, the

Government and its agencies, if there was genuine

will, could have helped the industry and workers by

relocating industries by taking appropriate steps in last

about 15 years. On the other hand, it encouraged

illegal activities.”

The Supreme Court in Shanti Sports Club and another v.

Union of India and others

24

has observed that if a building is used for

the purpose other than one specified in the master plan, such construction

is not only burden on the infrastructure like water, sewerage, etc., but they

also create chaos on the roads. “The pollution caused due to traffic

congestion affects the health of the road users. The pedestrians and people

belonging to weaker sections of the society, who cannot afford the luxury

of air-conditioned cars, are the worst victims of pollution. They suffer

from skin diseases of different types, asthma, allergies and even more

dreaded diseases like cancer. The relevant part of the judgment reads as

under:-

“74. ...The pollution caused due to traffic

congestion affects the health of the road users. The

pedestrians and people belonging to weaker sections

of the society, who cannot afford the luxury of air-

conditioned cars, are the worst victims of pollution.

They suffer from skin diseases of different types,

asthma, allergies and even more dreaded diseases like

cancer. It can only be a matter of imagination how

much the government has to spend on the treatment of

such persons and also for controlling pollution and

adverse impact on the environment due to traffic

congestion on the roads and chaotic conditions created

due to illegal and unauthorized constructions. This

Court has, from time to time, taken cognizance of

buildings constructed in violation of municipal and

other laws and emphasized that no compromise should

be made with the town planning scheme and no relief

should be given to the violator of the town planning

scheme etc. on the ground that he has spent substantial

amount on construction of the buildings etc...”

In the said judgment the Supreme Court has noticed that despite

24(2009) 15 SCC 705

29

repeated judgments of the Supreme Court and the High Courts the

authorities have shown scant respect for the master plan, zonal

development plans and they have received the encouragement and support

from the State apparatus.

It is apt to mention that clean air is one of the facets of the

fundamental rights of a citizen under Article 21 of the Constitution of

India. In this regard, the observations of the Supreme Court in the case of

Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay

Environmental Action Group and others

25

are apposite, which are

quoted below:

“100. Both open space as also the other factors

relevant for making the regulation would be in public

interest. The question would, however, be as to which

is of greater public interest. Public interest, thus,

would be a relevant factor also for interpretation of the

statute. Public interest so far as maintenance of

ecology is concerned pertains to a constitutional

scheme comprising Articles 14, 21, 48-A and 51-A(g)

of the Constitution, the other factors are no less

significant...

*** *** ***

115.Furthermore, interpretation of a town

planning statute which has an environmental aspect

leading to application of Article 14 and 21 of the

Constitution cannot be held to be within the exclusive

domain of the executive.”

Applying the principles enumerated above, we are of the view that

the PDA has failed to comply with the statutory provisions as the zonal

development plans of all the zones have not been prepared as yet. The

current zonal development plan only in respect of Zone B-4 is also against

the provisions of the master plan. The decision of the PDA regarding

mixed area needs a revisit of its policy in the light of discussions made

above and the judgments of the Supreme Court referred above. The city is

amongst 20 worst polluted cities in the world. Allowing the commercial

activities in the residential areas shall make the situation worst and shall

25(2006) 3 SCC 434

30

be irreversible. It will violate the fundamental rights of the citizens to

have clean air and clean atmosphere to live a healthy and dignified life.

We are also concerned that several open spaces and parks, which

are nazul land, are being allowed to be utilized for other purposes and

buildings after obtaining the freehold converting the land for the other

purposes, which is contrary to the law laid down by the Supreme Court in

M.I. Builders (Pvt.) Ltd. v. Radhey Shyam Sahu

26

, which has

been consistently followed by the Courts.

Before we part, we must express our deep concern over the manner

in which the authorities have turned blind eyes to traffic congestion in the

city. Despite several directions issued by this Court in suo motu public

interest litigation, being Public Interest Litigation (PIL) No. 1289

of 2019, In re: Parking Problem in Civil Lines Prayagraj and

other places, the situation appears to be irreversible for amongst one of

the reasons that commercial buildings are not using their parking space

shown in their sanctioned building plan, with the result the cars/ vehicles

of their customers are parked on the roads. The parking space shown in

their sanctioned maps are being used for other purposes such as godown

and has been converted into shops.

During the course of arguments our attention was drawn to the facts

that in recent years a large number of nursing homes and hospitals'

building maps have been sanctioned, which do not have parking space in

accordance with the building bye-laws of the PDA. The vehicles of their

customers/ users are parked on roads causing serious inconvenience to

pedestrians.

In view of the above, we issue following directions:

(1)The PDA shall prepare the zonal development plans strictly in

accordance with the provisions of Sections 8 and 9 of the Act as well as

the directions issued by the Division Bench of this Court in Smt. Radha

26(1999) 6 SCC 464

31

Rani Singh (supra).

(2)Till the zonal development plans are prepared in terms of the master

plan, no further commercial activity shall be allowed in the residential

areas without assessment of the impact as directed in the public interest

litigation in Ashok Kumar (supra) and in the light of observations

made in this judgment.

(3)While preparing the zonal development plans, the PDA shall pay

regard to the law laid down by the Supreme Court in the judgments noted

above regarding commercial use in the residential areas.

(4)The PDA shall ensure that all the commercial buildings, which have

been sanctioned and made in the residential areas, shall strictly comply

with the sanctioned building plan, wherein the parking area has been

shown in their building plan. In case the parking area is used for the other

purpose, they shall be given the notice to provide the parking space

directly in accordance with their sanctioned map, failing which the

establishment shall be sealed after expiry of the time.

(5)Till the fresh zonal development plan is prepared, no further map

shall be sanctioned for commercial purpose in residential areas.

(6)The State Government/ District Magistrate shall not allow freehold

applications in respect of parks and open spaces shown in earlier zonal

development plan of Master Plan-2001 (which was enforced on

19.11.1995). The State shall cancel the freehold order of parks after

furnishing opportunity to affected persons and restore the parks in the

light of the law laid down by the Supreme Court in M.I. Builders

(supra) within six months.

Coming back to the facts of this case, we find that the petitioners

have challenged the impact fee for a sum of Rs.33,04,148.00 on the

ground that the impact fee is not provided anywhere in the Act and the

word itself is foreign to the legislation and as such, the fee having burden

of more than Rs.33 lakhs is wholly illegal and without any authority of

32

law. Similar argument has been raised in respect of the compounding fee.

The petitioners have relied on the judgments of Smt. Rekha Rani

(supra), Smt. Nisha Kumari (supra) and Smt. Malti Kaul

(supra).

Learned counsel for the respondents has submitted that insofar as

the judgments passed by this Court in the cases of Smt. Rekha Rani

(supra) as well as Smt. Nisha Kumari (supra) are concerned, the

PDA has filed special leave petitions in the Supreme Court, wherein

interim orders have been passed. Hence, the PDA is entitled to realize the

said fees.

We are of the view that the demand raised by the PDA shall be

subject to the decision in the special leave petitions pending before the

Supreme Court. Any deposit made by the petitioners shall abide by the

result of the special leave petitions.

Learned counsel for the petitioners submits that the petitioners may

be granted liberty to file a representation before the authority concerned in

respect of the impact fee and compounding fee.

Having due regard to the facts of this case, we permit the petitioners

to make a representation before the authority concerned of the PDA in

respect of the impact fee, compounding fee, development charges and

other fee. The representation of the petitioners shall be considered by the

authority concerned in accordance with law expeditiously.

With the aforesaid observations and directions, this writ petition is

disposed of.

No order as to costs.

Order Date :- 16

th

November, 2019

SKT/-