The Act of 1973 does not contain any provision for compounding of constructions. However, there is a provision for composition of offences under Section 32 of the Act 1973 which reads as follows:-
“32. Composition of Offences.- (1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded-by ¹[the Vice-Chairman (or any officer authorised by him in that behalf by General or Special order)] on such terms, including any terms as regards payment of a composition fee, as ²[the Vice-Chairman] (or such officer) may think fit.
(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded.” {Para 24}
27. Therefore, the offences which can be compounded are the offences of prosecution/fine and there is no provision, under which, unauthorized constructions can be compounded at least under the Act. However, at the same time, the effect of Compounding Bye-laws would also be examined but one thing is clear that even in the Bye-laws of 2009 relied upon by the Development Authority as quoted hereinabove, the word “constructions” has not been mentioned, rather the word “अपराध ” (“offence”) has been used, meaning thereby, that even the Bye-laws speak of composition of “offences” and not compounding of “constructions”.
28. This Court finds that there is no provision under the Act, 1973 which entitles the Authority to go for profiteering on an illegal act of encroachment or unauthorized construction in the name of compounding. The compounding contemplated in Section 32 is certainly in respect to offences punishable under the Act. It nowhere provides that once an offence is compounded, an act, which is in violation of Plan, shall also stand regularized or become valid. The effect of compounding is provided in Sub-section (2) of Section 32 that an offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect to the "offence" compounded. This is with regard to the criminal liability fastened upon the person for committing an offence under the Act, 1973. But the prohibition contained in the Act and statutory obligation upon Authorities to set right a person who has faulted/breached such provision by taking appropriate action, e.g. demolition of building by exercising power under Section 27 has not been made un-operated when an offence is compounded. The proceeding prevented as a result of compounding an "offence" relates to offence and illegality/irregularity so prohibited/controlled under another provision. It may also be noticed that by U.P. Act No. 3 of 1997 (hereinafter referred to as "Act, 1997"), certain other offences have been provided vide Sections 26D and 28A. However, removal of any construction raised in contravention of Plan and removal of encroachment etc. are governed by a different procedure and steps which would remain uneffected by such compounding. In other words, the compounding under the Act, 1973 is to avoid the criminal liability and punishment on conviction but not to regularize a construction prohibited under the Act for which no relaxation is permissible except when the plan is amended in accordance with Section 13 of the Act.
56. There is another contention that since compounding charges have been paid and therefore, construction whatsoever raised by petitioners must be taken to be valid construction, also has no force for the same reason that petitioners have no right over the land at all. Even otherwise, we are of the view that unauthorized construction would not stand regularized on payment of compounding charges, since concept of compounding charges is not to regularize unauthorized construction but to compound an offence so that otherwise punishment in the Court of law in a trial may not be inflicted.
ALLAHABAD HIGH COURT
Case :- WRIT - C No. - 6183 of 2016
D.B. Kauser Vs State Of U.P. And 4 Others
Coram: Hon'ble Kshitij Shailendra,J.
Delivered on 10.05.2023.
1. This writ petition has been filed challenging the order dated 07.01.2016 whereby the State Government, in exercise of powers under Section 41(3) of the U.P. Urban Planning & Development Act-1973 (hereinafter referred to as ‘the Act-1973’), has decided a Revision No.33/12 (Smt. Lakshmi Singh v. Allahabad Development Authority & Ors.) remanding the matter to the Allahabad Development Authority with a direction to dispose off the compounding map submitted by the revisionist (Lakshmi Singh) in 2005, after providing opportunity of hearing to all the parties and in the light of Rules, Bye-laws and Government Orders relating to compounding.
2. The petitioner has also claimed quashing of all proceedings pursuant to the application filed by the respondent no.5 for compounding of unauthorized constructions with a further prayer to direct the Development Authority to demolish the unauthorized constructions allegedly raised by the respondent no.5 allegedly over the petitioner’s plot.
Facts of the case.
3. The Secretary of Anant Avas Sahkari Samiti Limited (in short ‘Society’) purchased free-hold land covered Arazi Nos. 91, 92, 93, 125 and 126/1, Mauja Muirabad, Allahabad from one Mr. Theodere Hughes, vide registered sale deeds dated 22.10.1986 and 28.01.1987. The petitioner purchased a plot bearing No.12-A over Arazi Nos.91 and 126/1 measuring 25’ x 70’, vide registered sale deed 16.07.1987 from the Society. It is stated that Mr. Shiva Mohan Singh Advocate, husband of respondent no.5 (Lakshmi Devi), committed a criminal trespass over the petitioner’s plot on 12.01.1990 and, thereafter, again on 14.04.1990 in association with one Mr. Rama Shanker Misra, although the said persons neither had any contract for sale in their favour nor any sale deed executed by the Society. Description of various plots transferred by the Society in favour of other persons has also been given in the writ petition. It is pleaded that name of the petitioner was mutated in the revenue records pursuant to the sale deed dated 16.07.1987 and that it was only in the year 1996 that the Allahabad Development Authority included the aforesaid land under the master plan for construction of residential houses.
4. It is pleaded that land of Arazi No.126-अ belonging to one Minhazuddin was 19 Biswa since 1913 A.D. onwards and his rights, after his death, were succeeded by Smt. Shaiyma Begum, Smt. Asma Bibi and Mr. Shamim Ahmad and, thereafter, the said persons, in collusion with the concerned Lekhpal of Tehsil Sadar, Chail, Allahabad, tempered the revenue records in the year 1982 and illegally got the area of Plot No.126-अ increased from 19 Biswa to 33 Biswa. It is pleaded that Arazi No.126-अ is adjacent to the land covered by Arazi Nos.126/1 and 91. It is further pleaded that husband of respondent no.5 and Mr. Rama Shankar Mishra committed criminal trespass over the petitioner’s land on 12.01.1990 at the strength of muscle power and dug foundation with an intent to usurp the petitioner’s land alongwith the adjoining land belonging to other plot-holders and this act of the aforesaid persons led the petitioner to move complaints before the District Magistrate as well as police authorities who, by order dated 12.01.1990 stopped the act of encroachment and digging exercise. It is pleaded that second time criminal trespass over the petitioner’s land was committed on 14.04.1990 which was also complained of to the district authorities and because of their intervention, the act of trespass could be restrained. Necessary documentary evidence regarding the aforesaid acts has been annexed alongwith the writ petition. It is further pleaded that later on, a contract for sale was got executed in respect of two plots having dimensions 20’ X 57’ and 50’ X 57’ on 29.05.1990 and 16.06.1990 in favour of Smt. Mangla Mishra D/o Mr. Rama Shanker Mishra and the respondent no.5 showing the land covered by the said agreements to be situated in Arazi No.126-अ. It is pleaded that on the dates of trespass i.e. 12.01.1990 and 14.04.1990, the said persons did not had any legal deed/agreement in their favour.
5. It is further pleaded that on 27.06.1990, the petitioner approached the Vice-Chairman of the Allahabad Development Authority requesting demolition of unauthorized constructions raised by the aforesaid persons and, consequently, the Development Authority issued a demolition notice dated 25.09.1990 under Section 27(1) of the Act-1973. Apprehending demolition, two sale deeds were executed respectively in favour of Mangla Mishra and respondent no.5 on 29.05.1990 and 16.06.1990. Various proceedings on administrative side have been referred by the petitioner in the writ petition, however, since the matter relates to validity of constructions raised by respondent no.5 vis-a-vis an issue of compounding of the said constructions, I would deal with only those aspects which are relevant for pronouncing the judgement on the said issue.
6. It is further pleaded that apprehending demolition, a sale deed was executed in favour of respondent no.5 on 18.01.1991 through Attorney Aftab Ahmad and that the State filed a case under Sections 33/39 of the U.P. Land Revenue Act-1901 against the aforesaid legal heirs Smt. Shaiyma Begum, Smt. Asma Bibi and Shamim Ahmad, in which, the Sub Divisional Officer, Sadar, Chail, Allahabad by order dated 12.03.1991 restored back the area of Arazi No.126-अto its original figure i.e. 19 Biswas which was entered into the revenue records. It is further pleaded that since the sale deed dated 18.01.1991 executed through the attorney was in relation to the 22 biswas, pursuant to the order dated 12.03.1991, the power of attorney executed in the year 1989, the contracts for sale executed in the year 1990 and the sale deed executed in the year 1991 rendered non-est in the eyes of law. It is further pleaded that pursuant to the demolition notice issued by the Development Authority, partial constructions raised by the respondent no.5 were demolished on 18.03.1991 and 21.03.1991 and against demolition orders two appeals were filed before respondent no.2, being Appeal Nos.19/1991 and 24/1991.
7. The aforesaid appeals were dismissed by the Commissioner, Allahabad, Division-Allahabad vide order dated 02.05.1994 and the following conclusion was drawn:-
“विद्वान अधिवक्ताओं की बहस को सुनने तथा पत्रावली पर उपलब्ध कागजातों को देखने के बाद में इस निष्कर्ष पर पहुँचता हूँ कि अपीलकर्ता द्वारा प्रस्तुत मानचित्र अस्वीकृत कर दिया गया था तथा उसके द्वारा बिना मानचित्र स्वीकृत कराये हुए अनाधिकृत निर्माण किया गया था जिसका आंशिक रूप ध्वस्तकरण कर दिया गया था। उसके पश्चात उसके द्वारा प्रस्तुत अपील पर इस न्यायालय द्वारा स्थ्गनादेश दिया गया था। अपीलकर्ता के विद्वान अधिवक्ता यह सिद्ध करने में असमर्थ रहे कि एतरफा कार्यवाही विकास प्राधिकरण द्वारा की गयी है। अपीलकर्ता के पति पर बाकायदा नोटिस तामील है क्योंकि उन्हीं के द्वारा मकान का निर्माण कार्य कराया जा रहा था। नियमों में भी ऐसे व्यक्ति पर नोटिस तामील मान्य है। अपीलकर्ता द्वारा कराया गया निर्माण कार्य अनाधिकृत सिद्ध हो चुका है। अतः संयुक्त सचिव द्वारा पारित आदेश दिनांक 25.9.90 तथा 21.3.91 में कोई अनियमितता या अवैधानिकता नहीं है। दोनो अपीलें बलहीन हैं जिसे एतदद्वारा निरस्त किया जाता है।”
8. The Commissioner, as such, held that the demolition orders passed on 25.09.1990 and 21.03.1991 were in accordance with law and that the constructions raised by the respondent no.5 had proven to be unauthorized.
9. Challenging the order dated 02.05.1994, the respondent no.5 filed writ petitions being Writ C Nos.21024 of 1994 and 21025 of 1994, in which, an interim order was passed on 06.07.1994 but despite the said interim order, the respondent no.5 raised constructions of three-storeyed building on the spot. The aforesaid writ petitions remained pending and the petitioner being person aggrieved by the unauthorized raising of constructions over his plot, filed an impleadment application as well as certain affidavits. However, the respondent no.5 being petitioner in the aforesaid writ petitions, got the same dismissed as withdrawn on 16.12.2005.
10. After withdrawing the aforesaid writ petitions, the respondent no.5 filed a review application before the Commissioner who, by order dated 30.01.2006, directed that the matter of compounding of constructions be examined by the Development Authority in accordance with law at the rates which were applicable in 2005-2006. Even in the said order, it was clearly recorded that unauthorized constructions were raised by the respondent no.5 and her husband-Shiv Mohan Singh.
11. The petitioner challenged the order dated 30.01.2006 by filing Writ C No.22184 of 2006 (D.B. Kauser & Anr. v. Shiv Mohan Singh & Ors.). This Court, by order dated 14.05.2012, allowed the writ petition and quashed the order dated 30.01.2006 by observing that the compounding map submitted by the respondent no.5 was rejected in the year 1991, against which two appeals were filed before the Commissioner, which were dismissed on 02.05.1994 and, thereafter, writ petition filed against the said order was dismissed as withdrawn on 16.12.2005. The Court further observed that Commissioner had no power to review his previous order and, consequently, it was held that the order dated 30.01.2006 was wholly without jurisidiction.
12. The dismissal order dated 14.05.2012 was challenged by the petitioner of the said writ petition before the Supreme Court by filing Special Leave Petition which was dismissed on 09.11.2012.
13. Thereafter, the respondent no.5 preferred a Revision No.33 of 2012 (Smt. Lakshmi Singh v. Allahabad Development Authority & Ors.) on 21.06.2012 under Section 41(3) of the Act-1973 challenging the order dated 02.05.1994 passed in Appeal Nos.19/1991 and 24/1991. The said revision has been decided by order dated 07.01.2016 which has been impugned in the present writ petition. There is no dispute about the fact that the petitioner was initially not impleaded in the revision, however, impleadment was allowed by the State Government by order dated 15.07.2015 and, consequently, the petitioner was heard by the State Government.
Foundation of the writ petition.
14. The petitioner has assailed the order impugned by taking various factual and legal grounds which shall be dealt with while discussing the rival contentions of the parties. In sum and substance, the writ petition is founded on the premise that once the Development Authority and, thereafter the Commissioner held the constructions raised by the respondent no.5 as illegal and unauthorized and the compounding map was also rejected, against which writ petition was filed which was dismissed as withdrawn and, thereafter, a review application was allowed by the Commissioner but the said order was quashed in petitioner’s writ petition by order dated 14.05.2012 which was further affirmed by the Supreme Court, nothing remained to be decided at the level of State Government and it was a simple case where no direction for consideration of compounding issue could be issued by the State Government.
Counter affidavits
15. A counter affidavit has been field by the respondent no.5 making averments regarding her title pursuant to the Agreement for sale of 1990 and sale deed of 1991 and it is pleaded that dispute regarding ownership of the land cannot be decided by the Development Authority but by civil or revenue court. The allegations of trespass have been denied in the counter affidavit and the order impugned has been supported.
16. A counter affidavit has been filed on behalf of the Allahabad Development Authority as well as its Zonal Officer, stating that the order impugned is an order of remand and the title of the property would be looked into at the time of deciding the issue relating to compounding. Compounding Byelaws of 2009 which came into force w.e.f. 14.01.2010 have been annexed alongwith the said counter affidavit.
17. Various affidavits have been exchanged in the matter, however, I find that their contents are repetitive in nature. Nevertheless, it is necessary to refer to an affidavit dated 08.12.2021 filed by the petitioner alongwith which a report dated 15.09.2021 of Lekhpal, Tehsil-Sadar, Prayagraj has been annexed which reads as follows:-
“महोदय,
सलंग्ऩ प्रार्थना पत्र द्वारा रौली कौसर पुत्री D.B. कौसर निवासिनी - 100 H.I.G. कालोनी ममफोर्डगंज तहसील सदर जिला प्रयागराज की पुनः जांच की गई जाचोंपरान्त बिन्दु संख्या - 5(A), B, C, के सम्बन्ध में जांच आख्या निम्नलिखित है-
5(A)= मकान न० 18 B /2 और मकान नं० 18B/ 3 आराजी संख्या 91 व 126/1 ग्राम म्योराबाद में स्थित है।
5(B)= मकान नं० 18B/2 श्रीमती लक्ष्मी सिंह द्वारा बनवाया गया है तथा मकान नं० 18B/3 श्रीमती मंगला मिश्रा द्वारा बनवाया गया है।
5(C)= श्रीमती लक्ष्मी सिंह और श्रीमती मंगला मिश्रा द्वारा आराजी संख्या 126(अ) में शायमा बेगम व शमीम अहमद व आसमा बीबी से क्रय किया था परन्तु इन लोगो द्वारा क्रय की गई जमीन पर निर्माण न करके आराजी संख्या -91 व 126/1 में कर लिया गया है। जब कि उक्त जमीन vuUr सहकारी समिति की थी।
रिपोर्ट सेवार्थ प्रेषित है।
Sd.
15.09.21 “
Contention of the petitioner
18. The contention of the petitioner is that the order impugned has given unbridled license to the Development Authority to act recklessly, capriously and arbritarily at its will to compound constructions raised by the law-breakers in defiance of the provisions of the Act-1973; the order impugned ignores the order dated 02.05.1994, passed by the Commissioner, Allahabad, Division-Allahabad, orders dated 16.12.2005 and 14.05.2012 passed by this Court, order dated 09.11.2012 passed by the Supreme Court and has been passed in ignorance of the fact which is established on record that at the time of raising of unauthorized constructions, the respondent no.5 was not having any title over the land and, even otherwise, it stands established that the constructions have been raised during the pendency of the writ petition filed in the year 1994 and over the land of the petitioner which has been fraudulently usurped by the violaters of law. Further argument is that once the constructions have already been found to be illegal and said orders have attained finality, compounding is not permissible. It has been further argued that matter has been unnecesarily remanded to the Development Authority, reopening a closed chapter. The petitioner has referred to various documents to the Court which include the action taken at the level of district administration, police authorities as well as revenue authorities to establish that the respondent no.5 has not only grabbed the petitioner’s plot but also raised unauthorized constructions over the land of the petitioner which are contrary to the provisions of the Act-1973.
Contention of the respondent no.5
19. It has been argued on behalf of respondent no.5 that the petitioner is raising a title dispute which is beyond the jurisdiction of the Development Authority and since by the order impugned, the matter of compounding of constructions is yet to be examined, the order impugned needs no interference and, insofar as, title issue is concerned, the petitioner is at liberty to approach civil/revenue court.
Contention of respondent-Development Authority
20. Shri Nisheeth Yadav, learned counsel has vehemently argued that as on today, no decision has been taken by the Development Authority compounding the constructions of respondent no.5 and pursuant to the order of remand, the said aspect would be examined. Shri Yadav has, by referring to Clause 3.2 of the Compounding Byelaws of 2009, argued that no compounding of constructions raised over the disputed plot is permitted and, therefore, while considering the compounding issue, this aspect would also be examined. For a ready reference, relevant portion of Clause 3.2 of the Compounding Byelaws is reproduced hereinbelow:-
“3.2 निम्नलिखित अपराध शमनीय नही होगेंः-
3.2.1 सार्वजनिक व अर्ध्द – सार्वजनिक सुविधायों, सेवाओं एवं उपयोगिताओं यथा – सडक, रेलवे लाइन, पार्क, ग्रीनवर्ज आदि हेतु आरक्षित अथवा उनसे सम्बन्धित भूमि पर किया गया निर्माण।
3.2.2. महायोजना या जोनल डेवलपमेन्ट प्लान या ले-आउट प्लान या लीज में निर्धारित भू-उपयोग के विपरीत किया गया निर्माण।
3.2.3 अवैध भू-उपविभाजन जिसका नियमितीकरण नही हुआ है, के अन्तर्गत स्थित भूखण्ड पर अथवा भवन में किया गया निर्माण।
3.2.4 सरकारी या सार्वजनिक भूमि पर बिना सम्बन्धित विभाग की अनुमति से किया गया निर्माण।
3.2.5 विवादित भूमि पर किया गया निर्माण।“
Contention of learned Standing Counsel
21. It has been argued on behalf of the State that the order impugned is non-injurious to all the parties as the State Government has directed consideration of matter of compounding with a clear stipulation that all the parties shall be provided opportunity of hearing and that an order would be passed by the Development Authority in the light of the relevant Rules, Regulations, Bye-laws and Government Orders.
22. I have heard Ms. Rollie Kausar, petitioner in person who has been substituted after death of her father, i.e. the sole petitioner, Shri C.B. Singh, learned Standing Counsel appearing on behalf of respondent nos.1 and 2, Shri Nisheeth Yadav, learned counsel appearing on behalf of A.D.A. i.e. respondent nos.3 and 4, Shri Prakash Chandra Srivastava, learned counsel appearing on behalf of respondent no.5 and perused the records.
23. Since the issue involved in the writ petition is as to whether the compounding of constructions raised by the respondent no.5 can be considered pursuant to the order of remand and as to whether order of remand is in accordance with law, I would deal with basic concept of compounding of constructions in the light of judicial pronouncements and the provisions contained in the Act-1973.
24. The Act of 1973 does not contain any provision for compounding of constructions. However, there is a provision for composition of offences under Section 32 of the Act 1973 which reads as follows:-
“32. Composition of Offences.- (1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded-by ¹[the Vice-Chairman (or any officer authorised by him in that behalf by General or Special order)] on such terms, including any terms as regards payment of a composition fee, as ²[the Vice-Chairman] (or such officer) may think fit.
(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded.”
25. The offences arising out of unlawful or unauthorized constructions are described in Section 26 of the Act-1973 which reads as follows:-
“26. Penalties.- (1) Any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land, in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission approval or sanction has been granted, shall be punishable with fine which may extend to ¹[Fifty thousand rupees], and in the case of a continuing offence, with further fine which may extend to 2[Two thousand five hundred rupees] for every day during which such offence continues after conviction for the first commission of the offence.
(2) Any person who uses any land or building in contravention of the provisions of Section 16 or in contravention of any terms and conditions prescribed by regulations under the proviso to that section shall be punishable with fine which may extend to 3[twenty-five thousand rupees and in the case of a continuing offence, with further fine which may extend to 4[One thousand, two hundred and fifty rupees] for every day during which such offence continues after conviction for the first commission of the offence.
(3) Any person who obstructs the entry of a person authorised under Section25 to enter into or upon any land or building or molests such person after such entry shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
26. Further there is a provision of realisation of fine as per Section 31 of the Act-1973 which reads as follows:-
“31. Fines when realised to be paid to the Authoriy.-All fines realised in connection with prosecutions under this Act shall be paid to the Authority.”
27. Therefore, the offences which can be compounded are the offences of prosecution/fine and there is no provision, under which, unauthorized constructions can be compounded at least under the Act. However, at the same time, the effect of Compounding Bye-laws would also be examined but one thing is clear that even in the Bye-laws of 2009 relied upon by the Development Authority as quoted hereinabove, the word “constructions” has not been mentioned, rather the word “अपराध ” (“offence”) has been used, meaning thereby, that even the Bye-laws speak of composition of “offences” and not compounding of “constructions”.
28. This Court finds that there is no provision under the Act, 1973 which entitles the Authority to go for profiteering on an illegal act of encroachment or unauthorized construction in the name of compounding. The compounding contemplated in Section 32 is certainly in respect to offences punishable under the Act. It nowhere provides that once an offence is compounded, an act, which is in violation of Plan, shall also stand regularized or become valid. The effect of compounding is provided in Sub-section (2) of Section 32 that an offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect to the "offence" compounded. This is with regard to the criminal liability fastened upon the person for committing an offence under the Act, 1973. But the prohibition contained in the Act and statutory obligation upon Authorities to set right a person who has faulted/breached such provision by taking appropriate action, e.g. demolition of building by exercising power under Section 27 has not been made un-operated when an offence is compounded. The proceeding prevented as a result of compounding an "offence" relates to offence and illegality/irregularity so prohibited/controlled under another provision. It may also be noticed that by U.P. Act No. 3 of 1997 (hereinafter referred to as "Act, 1997"), certain other offences have been provided vide Sections 26D and 28A. However, removal of any construction raised in contravention of Plan and removal of encroachment etc. are governed by a different procedure and steps which would remain uneffected by such compounding. In other words, the compounding under the Act, 1973 is to avoid the criminal liability and punishment on conviction but not to regularize a construction prohibited under the Act for which no relaxation is permissible except when the plan is amended in accordance with Section 13 of the Act.
29. In Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment, the Supreme Court held :-
"It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all."
30. In Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held :-
"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."
31. The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & Ors. v. Lt. Governor of Delhi & Ors., 2004 (6) SCC 440.
32. In Competent Authority v. Barangore Jute Factory & Ors., 2005 (13) SCC 477, it was held :-
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
33. In State of Jharkhand & others v. Ambay Cements & another, 2005 (1) SCC 368 in para 26 of the judgment, Supreme Court held : -
"It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
34. This Court in the case of Dr. Santosh Dixit & Anr. v. State of U.P. & Ors. 2017 (3) ADJ 401 (DB) has elaborately dealt with the issue of compounding of unauthorized consructions and it has been held that the violators of law cannot be benefitted under the garb of something which the law does not permit. It has been held that a deviation or violation from a Scheme or Plan cannot be made a means of profiteering by collecting huge amount from offenders/ violators and permitting them to continue to enjoy such deviation. If this stand is sustained, it would mean that the Statute is being read in a manner so as to confer an immunity upon the resourceful people to violate law and permit them to continue to enjoy such violation for all times to come by paying some amount to the Authority. These violators basically come from elite class. They find it easier vis-a-vis their status to part away any amount of money so as to retain the information of plan. It adds to their status also. Most of the builders have made it a part of their business. Simultaneously, the Development Authority also stands financially (officially and privately) benefited in allowing contravention of plan and violation of a statutory embargo without exercising its power of restoration by taking action of demolition etc. If such an interpretation is upheld, it would not only encourage corruption and element of extraneous consideration but would also create two classes; one those who are bound to suffer in their efforts of making any deviation from Master Plan since they lack financial resources to pay the so called compounding fees for continuing to enjoy the illegal and unlawful deviation; and, those who are rich, resourceful and capable to do so.
35. While making certain observations in respect to corruption prevailing in the Society, this Court in Smt. Mithilesh Kumari v. State of U.P. and others, 2011(1) ADJ 40 has observed that such creation and classification which encourages corruption, is discriminatory and also against human rights. The Court observed that in the last 60 years of independence, if there is one field we can boast of a national allround development and that too multifold, it is the field of corruption. It has various shades. It is not confined to only one field of bribery, cash and kind, but has different colours and nuances.
36. It has further been observed that though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word ''''bribery'''', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt.
37. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so.
38. While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely.
39. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.
40. Corruption violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms we can say that corruption develops a range bound field of behaviour, attitude and beliefs. Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty groves darker, and rich become richer."
41. Further this Court in the case of Mr. G.S.J. Shapoorjee v. Allahabad Development Authority & Ors., 2016 11 ADJ 524 has held in paragraph 45, 46, 56, 57 and 58 as under:-
45. ........Mere fact that map was sanctioned and thereafter constructions were raised, would make no difference for the reason that all transactions were void ab initio. The petitioners had no right over land, they were unauthorised occupants, hence question of making construction by getting a map sanctioned by ADA does not arise at all. Any act of ADA would not create any legal right in favour of petitioners which otherwise they also do not possess.
46....... A trespasser is not entitled to get sanction and raise constructions on a land over which it has no right,so as to create right over land. The entire things are illegal and void ab initio.
56. There is another contention that since compounding charges have been paid and therefore, construction whatsoever raised by petitioners must be taken to be valid construction, also has no force for the same reason that petitioners have no right over the land at all. Even otherwise, we are of the view that unauthorized construction would not stand regularized on payment of compounding charges, since concept of compounding charges is not to regularize unauthorized construction but to compound an offence so that otherwise punishment in the Court of law in a trial may not be inflicted.
57. We may also admit to consider another limb of argument that during pendency of writ petition in continuation of interim order, petitioners have further completed constructions and ADA be directed to regularise same by accepting payment of compounding fee. In our view, neither any such direction can be issued nor such relief can be granted and the entire argument in respect of alleged compounding and regularization is thoroughly misconceived.
58. We find from the Statute that compounding a building is permissible in the Statute under Uttar Pradesh Urban Planning & Development Act, 1973(hereinafter referred to as "Act, 1973") but if an illegal or unauthorized construction has been raised, Development Authority is not empowered to continue such illegal unauthorized constructions by realizing some amount.
42. In view of the above discussion, I find that once the Commissioner, in his order dated 02.05.1994, held the constructions raised by the respondent no.5 as unauthorized, illegal and contrary to law and the said order, though challenged by means of writ petition, but the challenge failed in terms of dismissal of the petition on 16.12.2005 and then order dated 30.01.2006 passed by the Commisisoner on review was further set aside by this Court on 14.05.2012 and was not interferred with by the Supreme Court while dismissing Special Leave Petition on 09.11.2012, there is nothing on record to show or establish that the constructions raised by the respondent no.5 were lawful. The effect of these orders cannot be ignored whether the order impugned is an order on merit or simply an order of remand.
43. Insofar as, the contention of State as well as Development Authority to the effect that the compounding has not been ordered but it will be considered and that the constructions raised on the disputed land would not be compounded, this Court finds that the said stand supporting the order impugned is liable to be discarded. There are various reasons behind forming this opinion. First of all, as explained hereinabove, the Bye-laws of 2009 speak of compounding of “offence” and not “constructions”. Secondly, if the same are stretched to compounding of constructions, though I do not find any justification for this, it would be a case where, according to the Development Authority, the matter would be examined in reference to the constructions which were raised on a disputed land.
44. Shri Nisheeth Yadav, learned counsel for the Development Authority has vehemently argued that there is no title dispute in between the petitioner and respondent no.5 and, therefore, the land over which, the constructions have been raised is not “विवादित” (disputed). The insistence of learrned counsel for the respondent-Authority is that, insofar as, the title dispute is concerned, the same should be left to be decided by civil/revenue court and such adjudication would have no bearing upon the merits/demerits of compounding of the constructions.
45. I am not in a position to accept the said argument. It appears that word “विवादित” (disputed ) is being understood by the respondents as the one which is a subject matter of civil or revenue litigation. However, considering the entire Scheme of the Act 1973 and even Bye-laws of 2009, I am of the opinion that word “विवादित ” (disputed) has to be understood as per its soul and intent and not to be misunderstood by the one which is engaging the attention of civil/revenue court or which may become a subject matter of such litigation.
46. As per Black’s Law Dictionary, the word “dispute” has been defined as a “conflict or controversy” and as per the New Lexicon Webster’s Dictionary, word “dispute” has been defined as “to quarrel, to argue, to question the truth, to fight hard, a controversy.”
47. The record of the writ petition narrates that right from the first action of taking possession or raising constructions on the spot in January 1990, the land became disputed in between the petitioner, respondent no.5, her husband and other associates, description whereof is contained in the intial portion of this judgment. The dispute travelled from a personal tussle in between the private persons on the spot to the District Adminstration, then Police Authorities, then Development Authority, then Commissioner of the Division, then this Court in various writ petitions, then again the Commissioner, followed by another intervention by this Court, then Supreme Court and, thereafter, revision before the State Government giving rise to the present writ petition. Once, the land became disputed in this manner, then, even as per the Development Authority, compounding is not permissible.
48. Insofar as, the order impugned is concerned, State Government has observed that the contention raised by the petitioner relates to title dispute which can be decided only by the civil/revenue court and the petitioner may institute a suit before such court. I find that in view of the above discussion, in a matter relating to compounding of constructions, this finding is not based upon critical analysis of the material available on record which was very much there before the State Government also while deciding the revision nor is it according to the very concept of compounding of constructions/offences, as elaborately discusssed hereinabove.
49. Insofar as the direction of remand is conerned, certainly the Development Authority, being sub-ordinate to the State Government, as per the Scheme of 1973, would take up the matter of compounding of constructions and would deal with the same in one or the other way and such a decision would give rise to further rounds of litigation by either side. At this juncture, I want to refer to the legal maxim “interest republicae ut sit finis litium” which means that it is in the interest of State that there must be an end to the litigation. This Court and the Supreme Court has also, time and again, held that judicial/quasi judicial authorities should avoid unnecessary remand, therefore, whenever it is found that remand is factually and/or legally unlawful and illegal, the same should be interfered with.
50. During the course of arguments, this Court also got a clear picture in its mind, as also argued from both sides that the petitioner’s plot purchased by a registered sale deed dated 16.07.1987 is not in her possession because of the constructions raised by respondent no.5 on the spot in the aforesaid manner.
51. The old British concept that a “Judge” is a neutral passive umpire has undergone a perceptable change. In S.P. Gupta v. Union of India, 1981 Suppl. S.C.C. 87, His Lordship, P.N. Bhagwati J. found that the British approach shall not be suited to Indian conditions and held that the judiciary cannot be a mere by-stander or spectator but it must become an active participant in the judical process ready to use law in the service of social justice through a ‘pro-active goal-oriented approach’.
52. In view of the above discussion, I am satisfied that the litigation once finalized, leaves no doubt in my mind that compounding is not permissible in the present case and, therefore, the impugned order remanding the matter to the Development Authority for deciding the compounding issue is unsustainable and contrary to factual and legal position well established on record.
53. The writ petition, therefore, succeeds and is allowed.
54. The order impugned dated 07.01.2016 passed by the State Government in Revision No.33 of 2012 (Smt. Lakshmi Singh v. Allahabad Development Authority & Ors.) is hereby quashed.
55. Necessary consequences pursuant to the quashing of the said order would follow.
Order Date :- 10.05.2023
Jyotsana
(Kshitij Shailendra, J.)
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