Proceedings For Alleged Different Usage Of Land Can't Be Initiated U/S 28-A UP Urban Planning & Development Act: Allahabad HC

The Allahabad High Court has held that proceedings for alleged different usage of land other than the sanctioned purpose cannot be initiated under Section 28-A UP Urban Planning and Development Act 1973.

The bench comprising Justice Manju Rani Chauhan held that for proceedings under Section 28-A of the 1973 Act, notice needed to be issued under Section 27 or Section 28 before the order is issued under Section 28-A. However, if allegations of land being used for a different purpose than the sanctioned one, then proceedings cannot be initiated under Section 28-A.

While quashing the impugned order, the Court observed that if initial notice is illegal, all consequential and subsequent proceedings will stand vitiated.

Factual Background

M/S Nutema Health Care Pvt. Ltd. is a multi-speciality care hospital which became operational in April 2017 in Meerut District after the completion of construction in accordance with the map as sanctioned by the Meerut Development Authority. The Petitioner purchased the adjoining land for the construction of a multi-level parking. An application for a compounding map was placed before the Development Authority in the year 2017.

During the pendency of the application, an order was passed in a proceeding initiated under section 28-A(1) of the 1973 Act directing the sealing of the premises of the petitioner on the pretext of parking place being used for Lab, Operation Theater and Blood Bank.

Section 28-A provides power to the Vice Chairman to order the sealing of an unauthorized development in a manner prescribed under the Act.

An appeal was filed against the order of the sealing, wherein the Chairman admitted that the compounding map of the petitioner is pending consideration before the Authority. However, directions for the removal of 40% of the partitioned area within a month was issued. Appellate Authority directed that if the pending application is placed before the Authority, it shall be decided within a month.

Thereafter, the petitioner filed a representation before the Chief Town Planner and the Zonal Officer with regard to the consideration of the compounding map and deposited Rs. 1,25,00,000/. However, during the pendency of this application, the order was passed directing the removal of 40% of the partitioned area in the property in question within 21 days. The petitioner was directed to submit a compounding map else coercive action would be initiated against it. Consequently, the petitioner approached the High Court.

Counsel for the petitioner argued that the initial order under Section 28-A(1) of the 1973 Act was without jurisdiction. Notice under Sections 27 (Order of Demolition of Building) or 28 (Power to Stop Development) of the 1973 Act ought to have been issued before passing order under Section 28-A. It was further argued that proceedings under Section 28-A of the 1973 Act could have been initiated where development work is being carried out is against the sanctioned map. However, where the property is being used for a purpose different from the sanction, a proceeding could be initiated under Section 26(2).

It was argued that in the initial order it was alleged that the property was being used for a different purpose, the proceedings, if any, should have been initiated under Section 26 (Penalties) and not Section 28-A. It was further argued that once the initial order is without jurisdiction, any consequential order will stand vitiated.

High Court Verdict

The Court observed that under Section 28-A of the 1973 Act, the Vice-Chairman of the Development Authority can at any time, before or after making an order for the removal or discontinuance of any development under Section 27 or Section 28, make any order directing the sealing of such development in a development area.

“This clearly indicates that if any order is to be passed under Section 28-A of the Act, 1973 it is imperative that proceedings under Sections 27 or 28 of the Act, 1973 should have been initiated and it is only in that event that an order can be made under Section 28-A of the Act, 1973 either before or after making an order under Section 27 or 28 of the Act.”

The Court held that if the initial action is illegal, any and all consequent actions will be vitiated in law. The Court placed reliance on the similar decision of the Apex Court in State of Punjab vs. Davinder Pal Singh Bhullar and Mangal Prasad Tamoli (dead) by Lrs. v. Narvadeshwar Mishra (dead) by Lrs. & Ors.

“In Badrinath v. State of Tamil Nadu & others, AIR 2000 SC 3243 and State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr, (2001) 10 SCC 191, the Apex Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally.”

The Court held that since the initial order records that the area for parking space was being used for different purposes, proceedings could not have been initiated under Section 28-A of the 1973 Act.

Accordingly, the impugned orders were quashed and the Development Authority was directed to pass orders on the application for compounding pending before him.

Case Title: M/S Nutema Helth Care Pvt.Ltd. vs. State Of U.P. And 4 Others 2023 LiveLaw (AB) 482 [WRIT - C No. - 42393 of 2023]

Citation: 2023 LiveLaw (AB) 482

Counsel for Petitioner: Anoop Trivedi, Senior Advocate assissted by Abhinav Gaur, Vibhu Rai Counsel for Respondent: C.S.C., Shiv Prakash Gupta

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