Hon'ble Mahendra Dayal, J.
At the outset, we are of the opinion that as per present roaster, we have no jurisdiction to hear writ petition No. 2822 (MS) of 2009, to which learned counsel for the parties has submitted that since the facts are inter-connected and a Co-ordinate Bench of this Court, vide orders dated 29.10.2009 and 22.4.2014 passed in Special Appeal No. 682 of 2009, have already observed that all these matters are with regard to almost same controversy, it shall be appropriate that the special appeal as well as pending two writ petitions may be heard by same Division Bench. Consequently, vide order dated 01.8.2014, Hon'ble the Senior Judge has been pleased to direct for listing the matters before the Bench presided by one of us, namely, Hon'ble Rajiv Sharma, J.
In order to satisfy us, we summoned the Joint Registrar (Listing) to ascertain the fact as to whether we can hear writ petition No. 2822 (MS) of 2009 along with special appeal No 682 (M/S) of 2009 and writ petition No. 8803 of 2010 (MS). In response, Joint Registrar (Listing) appeared and clarified that this Court has jurisdiction to hear the matter finally in view of the assignment of the cases by Hon'ble the Chief Justice. In the backdrop of the aforesaid facts, we are proceeding to hear all the above-captioned matters.
Writ Petition No. 8803 of 2010 (M/B) has been filed by the City Montessori School through its Founder Manager Sri Jagdish Gandhi, assailing the resolution dated 28.8.2010 passed by the Lucknow Development Authority Board in its meeting dated 28.8.2010, the circular dated 13.10.1998 issued by the Secretary, Lucknow Development Authority and the order dated 9.4.2010 issued by the Vice-Chairman, Lucknow Development Authority.
Special Appeal No. 682 of 2009 arises out of the ad interim order dated 26.8.2009 passed in C.M.Application No. 77648 of 2009 in re: writ petition No. 2822 (M/S) of 2009, whereby learned Single Judge allowed the application for modification preferred by the writ petitioner with the following directions :
"The question is whether the petitioner can be permitted to maintain the unauthorised construction of the building in question till the creation of space for the surplus students by erecting the building on the purchased plot?. No doubt as per determination made by the authorities concerned there is some unauthorised construction which is observed as non-compoundable, but now the Secretary, Lucknow Development Authority has passed the order dated 22.8.2009 that the total unauthorised construction either compoundable or non compoundable is liable to be demolished. I cannot loose sight of the fact that the neighbour, who is facing problem has come forward against the petitioner, but keeping in view the fact that the school has been running since 1983 and is not prohibited under Master Plan and the petitioner has also searched alternative place by purchasing another adjacent house No. B-321, moreso he undertakes to complete necessary construction of the said plot before starting the next session and the students are in the mid of session, I hereby permit the petitioner to maintain the construction as on today till the next session starts and immediately thereafter he shall demolish the unauthorised construction. To this extent, I hereby modify the order passed by this Court on 27.5.2009. I further provide that if the petitioner is aggrieved with the order dated 22.8.2009 passed by the Secretary, Lucknow Development Authority, Lucknow, he is at liberty to challenge the same before the appropriate forum."
Writ Petition No. 2822 (M/S) of 2009 has been filed by the City Montessori School through its founder member Mr. Jagdish Gandhi, challenging the orders of the demolition dated 23.7.2002, 22.10.2007 and 20.5.2009 passed by the Prescribed Authority of the Lucknow Development Authority, Lucknow.
As consented by the counsel for the parties that since common question of law and facts are involved in the above-captioned cases, they are being taken up together and decided by a common order, we have heard Mr. V.B. Upadhyaya, Senior Advocate, assisted by Mr. S.L. Vaish and Mr. Manish Vaish, appearing on behalf of the City Montessori School and Mr. Shobhit Mohan Shukla, Counsel for the Lucknow Development Authority.
Shorn off unnecessary details, the facts of the case are as under :
Writ petition No.8803 of 2010 (M/B) has been preferred by the City Montessori School through its founder Manager Mr. Jagdish Gandhi. The City Montessori School has several branches in different areas in the city of Lucknow for imparting education to the students. In order to open its Branch at Mahanagar area of Lucknow city, the petitioner (Mr. Jagdish Gandhi) took a house, bearing House No. B-320, Kamal Kunj, Mahanagar, having a total covered area of approximately 5300 Sq. Ft., on rent from one Smt. Kamla Gupta (landlady) wife of Late Gyan Chandra Gupta through a lease deed dated 14.6.1987. After expiry of the said lease deed dated 14.6.1987, the petitioner refused to enhance the rent as demanded by the then landlady. Therefore, a dispute for rent started between the petitioner and landlady. When landlady failed to evict the petitioner from the aforesaid house, a joint complaint has been preferred by the landlady and Mr. Prakash Singh, who is the neighbour of the petitioner, to the Lucknow Development Authority for demolition of extended temporary structure made by the petitioner as per lease deed. The Prescribed Authority of the Lucknow Development Authority took cognizance upon the said complaint and vide order dated 23.7.2002 held that as per Zoning Regulation of Master Plan, 2001, school is to be placed in residential colony but no school is permitted to operate in residential building.
Feeling aggrieved by the aforesaid order dated 23.7.2002, the petitioner approached the Vice-Chairman/Commissioner of the Lucknow Development Authority by filing an appeal. The Vice-Chairman of the Lucknow Development Authority, while disposing of the appeal vide order dated 31.1.2006, upheld the order dated 23.7.2002 passed by the Prescribed Authority and directed the Secretary of the Lucknow Development Authority that keeping in view the strength of the students studying in the school and on considering the circumstances of the case, suitable time for alternate arrangement shall be allowed to the management of the school and in the meantime, the order dated 23.7.2002 shall be kept in abeyance. It was also provided that for alternate arrangement, Lucknow Development Authority/Nagar Nigam and U.P. Awas Evam Vikas Parishad will help the petitioner for allotment of plot for the purpose of school.
According to the petitioner, pursuant to the observation made by the Chairman, Lucknow Development Authority, the petitioner preferred applications to all the three authorities i.e. Lucknow Development Authority/Nagar Nigam and U.P. Avas Evam Vikas Parishad but all the authorities had refused to allot any piece of land to the petitioner on the ground that there is no land in the vicinity of Mahanagar area. In the meantime, being aggrieved by the order dated 31.1.2006, Mr. Prakash Singh has approached this Court under Article 226 of the Constitution of India by filing writ petition No. 6882 (M/B) of 2006. A Division Bench of this Court, vide order dated 4.7.2007, rejected the interim relief application. Thereafter, the petitioner has also approached this Court by filing writ petition No. 1678 of 2007 (M/S) with a prayer to quash the part of the appellate order dated 31.1.2006, which confirms the order of demolition passed by the Prescribed Authority.
It has been stated by the petitioner that During the pendency of the aforesaid writ petitions, the Prescribed Authority, without serving any show cause notice, passed the order dated 22.10.2007 in case No. 791 of 2001, directing to demolish illegal construction excluding the construction stayed by the court and compliance report be submitted. Pursuant to the aforesaid order dated 22.10.2007, the concerned authorities came with full force and demolished the front set back of the building. Subsequently, another notice dated 16.12.2008 was issued by the Prescribed Authority for demolition. Feeling aggrieved, the petitioner has again approached this Court by filing writ petition No. 6382 of 2008 (M/S), which was disposed of finally vide order dated 21.12.2008 with the following directions :
"Considering the peculiar facts and circumstances of the case, the opposite parties are directed to decide the reply/objections to the show-cause notice dated 16.12.2008 within one month from the date of receipt of it alongwith a certified copy of this order. The petitioner shall file reply/objection to the said show cause notice dated 16.12.2008 within one week from today. It will be open for the petitioner as well as Lucknow Development Authority to suggest the piece of land for the institution. Till 30.4.2009, the demolition proposed with regard to the front and rear setbacks shall be kept in abeyance."
In compliance of the aforesaid order, the petitioner submitted detailed reply to the demolition notice dated 16.12.2008. In the meantime, the Prescribed Authority has passed another order of demolition on 20.5.2009. Being aggrieved, the petitioner has approached this Court by filing writ petition No. 2822 (MS) of 2009, in which, learned Single Judge passed an ad interim order dated 27.5.2009, which reads as under :
"Keeping in view the interest of students studying in the school as well as the fact that after removing the construction as has been directed here-in-above, there will be no proper place to accommodate the whole students admitted in school, I hereby observe that the petitioner as well as the Vice Chairman of the Lucknow Development Authority, Lucknow will sit together and search alternate to establish another branch of school to accommodate the surplus students and also to establish the building at the new place in the vicinity of the Lucknow Development Authority, as far as possible nearby to the present school building. The petitioner shall submit proposal of the area and land available thereat which shall be finalised by the authorities concerned with the consent of the petitioner."
Pursuant to the order dated 27.5.2009, the petitioner has made every efforts to purchase the plots in the said area but all went in vain. Ultimately, the petitioner got success in purchase of a plot, bearing House No. B-321 belonging to Mr. Abdul Hai Khan measuring approximately 10,000 Sq. Ft., just adjacent to the present school, by means of sale deed dated 1.8.2009. Subsequently, the petitioner took the possession of House No. B-321 on 3.8.2009. Immediately thereafter, the petitioner applied for sanction of map for construction of school building as per norms laid down in Master Plan, 2021 on 3.8.2009. However, the said map was returned by the Map department on the ground that no map could be sanctioned for construction of a school building in a residential plot.
According to the petitioner, as three months' time granted by this Court in the aforesaid writ petition No. 2822 (MS) of 2009 was going to expire and further the Map department of the Lucknow Development Authority has refused to sanction the map, the petitioner preferred an application for modification of the order dated 27.5.2009 in writ petition No. 2822 (MS) of 2009, bearing C.M. Application No. 77648 of 2009, which was allowed by the learned Single Judge vide order dated 26.8.2009, impugned in Special Appeal No. 682 of 2009.
According to the petitioner, when the map of the school was not sanctioned by the Map department, he approached this Court again by filing writ petition No. 817 (M/B) of 2010, in which, vide order dated 8.2.009, a Co-ordinate Bench of this Court directed the Lucknow Development Authority to file a short counter affidavit but instead of filing short counter affidavit, the petitioner was served with an order dated 10.2.2010 passed by the Executive Engineer, refusing to sanction map submitted by the petitioner for construction of a school building over plot No. B-321, Mahanagar, Lucknow. Thereafter, the petitioner has filed another writ petition, bearing No. 2460 of 2010 (M/B), challenging the said order dated 10.2.2010 of Executive Engineer-II. A Co-ordinate Bench of this Court, vide order dated 23.3.2010, disposed of the said writ petition, which is reproduced as under :
"Heard learned counsel for the parties and perused the pleadings of the writ petition.
Learned Senior Counsel Sri Upadhyaya, appearing on behalf of the petitioner, submitted that the impugned order dated 10.2.2010 (Annexure No. P-1A) is cryptic and vague and it does not refer to any provision or to any part of the Master Plan to show that the draft map submitted by the petitioner to the Lucknow Development Authority was in violation of the same.
Sri D. K. Upadhyay, learned Chief Standing Counsel, appearing as Special Counsel for Lucknow Development Authority also agrees with the submission of learned Senior Counsel and, thus, submitted that this Court may quash the impugned order granting liberty to Lucknow Development Authority to pass appropriate order after giving opportunity to the petitioner to submit a representation and to personally appear before the Authority.
We find the submission of Sri D. K. Upadhyaya fair enough and, thus, we quash the order dated 10.02.2010 (Annexure No. P-1A) and grant liberty to the petitioner in terms of the submission of learned Chief Standing Counsel to make proper representation within a week from the date of receiving copy of this order and on such a representation being submitted, the competent authority concerned of Lucknow Development Authority shall give a notice to the petitioner for personal hearing and thereafter will pass appropriate orders on merit within fifteen days while referring to the relevant provisions of the law applicable and the parts of the Master Plan relevant for the purposes of passing draft map submitted by the petitioner.
This writ petition stands disposed of accordingly."
It has been submitted that in compliance of the aforesaid order dated 23.3.2010, the petitioner appeared before the Vice-Chairman of the Lucknow Development Authority and submitted his representation. The Vice-Chairman of the Lucknow Development Authority, vide order dated 9.4.2010, on placing reliance upon Circular 13.10.1998 issued by the State Government, referred the matter to the Board of the Lucknow Development Authority. In pursuant thereof, the matter was placed as Agenda No. 16 in the meeting of the Board of Lucknow Development Authority held on 18.5.2010, whereupon the Board passed a resolution approving for initiating the process of change in land use by inviting objections from general public.
According to the petitioner, when writ petition No. 2822 of 2009 (MS) was listed on 26.5.2010, the then Counsel for the Lucknow Development Authority stated that the Board of the Lucknow Development Authority has approved change of land use, however, such decision is required to be approved by the State Government in order to become effective and final under Section 13 (2) of the U.P. Urban Planning and Development Act, 1973. Considering this plea of the counsel for the Lucknow Development Authority, a Co-ordinate Bench of this Court has passed the following order :
"As Shri Upadhyay also represents State of U.P. which is party in the writ petition as well as Special Appeal, hence he must ensure that requisite decision is taken by the State Government after complying all the formalities within six weeks.
List on 20.7.2010.
Interim order operating till date shall remain in operation until next date of listing. However, if due to any reason the matter is not finalised by or on the next date fixed then prayer for further modification of interim order by granting liberty to the School to admit fresh students will be considered.
Let a copy of this order be given free of cost to Shri D.K. Upadhyay, learned standing counsel for L.D.A. Today."
It has been submitted that after passing the aforesaid order dated 26.5.2010 in writ petition No. 2822 of 2009 (MS), on one hand, the matter was not sent to the State Government and on the contrary, in view of resolution dated 18.5.2010 passed by the Lucknow Development Authority, a public notice was published in daily news paper, namely, 'The Pioneer' on 22.6.2010, seeking objections from general public to be submitted within 30 days. According to the petitioner, in response to the public notice dated 22.6.2010, not a single person had given its objection for running of a school in Mahanagar area on the plot No. B-321. Thereafter, in a utter surprise, the Lucknow Development Authority served an order dated 10.8.2010 to the petitioner, requiring the petitioner to deposit a sum of Rs.28,681/- for further publishing notice in the news paper giving opportunity to the persons to appear before the designated authority for airing their grievances. Thereafter, when the writ petition No. 2822 of 2009 (MS) was listed on 11.8.2010, the following order has been passed by the Co-ordinate Bench of this Court :
"Learned counsel for both the parties state that persuant to our order dated 26.5.2010 objections/suggestions regarding change of land use were invited as required by Section 13 (3) of U.P. Urban Planning and Development Act 1973 through publication in the daily English newspaper 'The Pioneer' published from Lucknow and dainik Hindi newspaper 'Aaj' both dated 22.6.2010. Shri D.K. Upadhyay, learned counsel for Lucknow Development Authority yesterday stated that about 70 objections were received. We directed the learned counsel to obtain the copies of all the objections. Today Shri D.K.Upadhyay, learned counsel for LDA has stated that in-fact there are 87 objections/suggestions. Learned counsel has got photocopies of all these objections/suggestions. However, after going through all the objections on the direction of the court, learned counsel states that in each and every objection/suggestion (which we would like to term as communication), the request is that land use must positively be changed so that school may be built which will be beneficial for the students. All these communications have been sent in response to the advertisements dated 22.6.2010.
Accordingly, as in real sense absolutely no objection or suggestion has been received hence there is no need to issue any further notice to those persons who sent their views. The matter does not require any further hearing by L.D.A. We repeatedly asked Shri D.K. Upadhyay to tell us as to whether in any of the objections/suggestion (communication) there was a single line or a single word against the proposed change of land use or any suggestion regarding any restriction to be imposed while granting permission for change of land use. Learned counsel has categorically stated that neither there is any such objection nor any such suggestion.
We therefore, direct that L.D.A. must hold its meeting within two weeks for the purpose of considering the application of the petitioner, management of the City Montessori school for change of the land use.
As the time is running out hence it is hoped that under no circumstances holding of the meeting would be postponed.
List on 31.8.2010 at 3.55 P.M. Interim order which is operating till date shall remain in operation until next date of listing.
Let a copy of this order be given free of cost to Shri D.K.Upadhyay, learned standing counsel for L.D.A. by tomorrow."
According to the petitioner, in the morning of Sunday i.e. 29.8.2010, the petitioner came to know through daily newspaper that the concerned land use for school building has been rejected by the Board in its meeting held on 28.8.2010. As a consequence thereof, writ petition No. 817 of 2010 (MB) was dismissed as infructuous with liberty to file fresh writ petition challenging the resolution dated 28.08.2010. Therefore, the petitioner has preferred writ petition No. 8803 (M/B) of 2010, challenging the resolution dated 28.8.2010.
Mr. V.B. Upadhyaya, Senior Advocate, appearing on behalf of the petitioner submits that Circular dated 13.10.1998 was no more applicable as new Master Plan, 2021 came w.e.f. 1.4.2005 insofar as this circular was issued in order to do away with the requirement of Gazette Notification which was required to be done under circular dated 26.12.1996 issued earlier by the State Government and the earlier circular dated 26.12.1996 issued by the State Government had required compulsory gazette notification in every case of 'change of land use' involving amendment of lay-out plan which was to be done at the level of the Board of Lucknow Development Authority or the U.P. Avas & Vikas Parishad, as the case may be and subsequently, vide circular dated 13.10.1998 issued within two years, it has been clarified that in those cases of amendment of lay-out plan which although involves change of land use but does not require amendment of Zonal or Master Plan, the same would be final provided it is published for general public as required under Section 13 (3) of the U.P. Urban Planning & Development Act, 1973 [hereinafter referred to as the "Act, 1973"]. Therefore, the Vice-Chairman, Lucknow Development Authority, Lucknow, committed an error in referring the matter to the Board of Lucknow Development Authority vide order dated 9.4.2010 on the basis of twelve years old circular dated 13.10.1998 issued by the State Government. His submission is that even if Circular dated 13.10.1998, which was relied by the Vice-Chairman of the Lucknow Development Authority, was presumed to be applicable over the present Master Plan, 2021, even then, it only talks of cases where 'change of land use' is involved whereas the instant case has nothing to do with 'change of land use' required to be done at the level of the Lucknow Development Authority Board or the U.P. Avas & Vikas Parishad (as the case may be), but rather the present case falls within the permissible 'use of land' as mentioned in Categories I to IV of para 7.1.2. of Master Plan, 2021, which permits certain land uses under Master Plan, 2021.
Elaborating his submission, Mr. Upadhyaya appearing for the petitioner-school submits that the Board of Lucknow Development Authority, while rejecting the proposal of the petitioner for sanction of map, has misunderstood the entire purpose of land use involved in the present case as the the Board has not considered the fact that not only in the present Master Plan, 2021 but also in earlier Master Plan, 2001, schools were permitted to be operated from residential areas and they have their school buildings over residential plots. Therefore, the Lucknow Development Authority has no power and authority to go against the norms laid down in Master Plan, 2021 so approved by the State Government under Act, 1973 and any amendment to the same would require major amendment under Section 13 of the Act, which could be done only by the State Government after following procedure laid down in Section 13 (3) of the Act, 1973. It has been contended that the Lucknow Development Authority has failed to consider the fact that those cases which are permissible under Master Plan, 2021 have to be decided by the concerned Executive Engineer of the Map Department of Lucknow Development Authority in accordance with the clear guidelines given in Annexure 4 attached to Master Plan, 2021 and in the light of the said procedure laid down in Annexure-4 attached to Master Plan, 2021, it was submitted before the Executive Engineer-II that Primary and Higher Secondary/Intermediate School have been shown against serial No. 5.9 & 5.10 of Matrix and on looking at coloured boxes against Serial No. 5.9 & 6.0 relating to primary schools and intermediate schools, it would be found that under Column 2, 3 & 4 relating to 'pre-constructed area', 'residential area', 'mixed area', 'developed area' mentioned at the top of the table. The relevant boxes against Serial No. 5.9 & 6.0 have been given light blue colour, meaning thereby that Second Procedure is applicable where map could be sanctioned on certain conditions and where no special permission is required from Prescribed Authority. He submits that on seeing conditions given at page 89, it is clear that condition No. 6 lays for 24 meters wide road, condition No. 18 lays 30 meters road and condition 23 lays 12 meters road. Thus, whether it is primary school or Intermediate college, all are permitted in all kind of pre-constructed, residential and mixed colonies provided the conditions laid down at page 89 are followed.
According to Mr. Upadhyaya, learned Senior Advocate, since construction of school building was permissible in a residential colony, therefore, the concerned Executive Engineer-11 had deputed his junior to survey the area and submit report, whereupon the said Junior Engineer has submitted the report after surveying the entire area and eliciting information from the residents of that area. In its report dated 8.1.2010, it has been mentioned that the concerned plot is situated on 30 meters wide road in a 'pre-constructed colony', hence, it satisfies the condition of minimum width of road laid down in the Master Plan, 2021 for construction of a school building in a 'pre constructed colony'. It has also been stated in the report that there is no school in the vicinity of present school and a large number of residents of that area have given their 'no objections' in writing to him. Therefore, the Junior Engineer has recommended for sanction of Map but the Board of Lucknow Development Authority erred in observing that it would cause great inconvenience to the residents of that area.
Mr. Upadhaya has contended that despite giving incentive in both Master Plan, 2001 as well as Master Plan, 2021, the petitioner has not been permitted to erect school building and as such, the petitioner has been forced to make temporary arrangements through tin-sheds covering front and set-back areas including roof tops so as to provide the maximum facilities to the students.
Lastly, Mr. Upadhyaya has submitted that the whole conduct of the authorities concerned of Lucknow Development Authority is not only malicious but also contumacious in nature insofar as not only their own Chairman but two times this Court had earlier directed the authorities to find out suitable piece of land in the Mahanagar area so that the studies of children may not be hampered due to demolition of extended temporary structure of the school. He submits that this Court has even warned the authorities in its order dated 27.5.2009 not to show any laxity in this direction in finding suitable land for this school but the Lucknow Development Authorities did not make any efforts in this regard and refused to give any land to the petitioner even at market rate. This has compelled the petitioner to purchase plot No. 321 out of its own resources by investing double the market price but after arranging this plot, now the authorities concerned, on one pretext or the other, are not sanctioning the map. Earlier they objected to the sanctioning of map on the ground that no map could be sanctioned for construction of a school building in a residential area but when this Court, vide order dated 26.8.2009 has clarified that there is no restriction in the Master Plan, 2021 for construction of a school building in a residential colony, a new colour has been given to said objection by the Map Department vide letters dated 28.8.2009 and 6.10.2009 to the effect that no map could be sanctioned over a residential plot. When the petitioner made representation against those objections, although those objections have been dropped by the Map Department but instead of sanctioning of map, it referred the matter to the Secretary, LDA.
Per contra, Mr. Shobhit Mohan Shukla, Counsel for the Lucknow Development Authority has submitted that plot in question, bearing No. B-321, Mahanagar is a residential plot situated in the middle of the row of other residential plots in Mahanagar Scheme which was planned and developed by the predecessor-in-interest of Lucknow Development Authority, namely, Lucknow Improvement Trust, Mahanagar, which is a residential colony in which certain plots were originally earmarked for schools. The Chief Town and Country Planner gave an opinion that permission to change the land use of the plot in question would not be appropriate as it will cause and create trouble for the residents of the area. Further, it was opined that in case such land use is permitted to be changed, then, other illegally operated Schools in the residential colonies would start claiming their regularization, which will run contrary to the Scheme for planning of the city.
Mr. Shukla has contended that Lucknow Master Plan, 2021 permits running of Primary School in residential area only if the school itself is situated at a road of 24 meters width which approximately equals to 80 Feet. Similarly, Secondary School can also be permitted to be run if the school itself is situated on a road of 30 meters width which approximately equals 100 feet. It is submitted that School in residential area is conditionally permissible. Mahanagar Scheme is fully a residential scheme and the land use is permissible only in accordance with already prepared and sanctioned layout. Thus, unless and until lay out plan of the Scheme itself is changed to accommodate a school, the same is impermissible. He submits that House No. B-321 is situated at a road which is of 80 feet width only. Thus, in any situation, no Secondary School can be permitted, even if lay out plan is sought to be changed. Moreover, permission to run the school should not be misconstrued to permit running of a school in a residential house.
In order to appreciate the rival submissions of the learned counsel for the parties, we deem it appropriate to reproduce Annexure No.4 of the Master Plan, 2021, which relates to sanctioning of the map for different categories of land use mentioned in the Master Plan, 2021. The relevant part of Annexure No. 4 is reproduced as under :
"izeq[k Hkw&mi;ksx tksUl esa fofHkUu fdz;[email protected] mi;ksxks dh vuqeU;rk djus gsrq xzkfQd izLrqrhdj.k ¼MATRIX½ ds mi;ksx dh fof/k egk;kstuk esa izLrkfor izeq[k Hkw&mi;ksx tksUl esa fofHkUu fdz;[email protected];ksxks dh vuqeU;rk tksfuax jsxqys'kUl ds ek/;e ls fu/kkZfjr dh tkrh gSA ;fn vkosnd }kjk fdlh Hkw&mi;ksx tksu ds vUrxZr fdz;k fo'ks"k dh fuekZ.k vuqKk ls lEcfU/kr ekufp= fodkl izkf/kdj.k esa Lohd`fr gsrq izLrqr fd;k tkrk gS] rks tksfuax jsxqys'kUl ds vk/kkj ij gh ;g r; fd;k tk ldsxk fd iz'uxr fuekZ.k ml Hkw&mi;ksx tksu esa vuqeU; gS vFkok ughA egk;kstuk ds izeq[k Hkw&mi;ksx tksUl esa fofHkUu fdz;[email protected];ksxksa dh vuqeU;rk ls lEcfU/kr fooj.k tksfuax jsxqys'kUl ds Hkkx&7-5 esa eSfVz~Dl ¼MATRIX½ ds :i esa izLrqr fd;k x;k gS ftlesa {kSfrt js[kk ¼X-Axis½ ij n'kkZ, x, gSA fdlh izeq[k Hkw&mi;ksx tksu esa fdlh fdz;[email protected];ksx dh vuqeU;rk Kkr djus ds fy, {kSfrt js[kk ¼X-Axis½ ij n'kkZ;h xbZ ml fdz;k ds lEeq[k Å?okZ/kj ¼Y-Axis½ js[kk ij n'kkZ, x, Hkw&mi;ksx tksUl ds dkye esa fn, x, ladsr ds vk/kkj ij vuqeU;rk Kkr dh tk ldrh gSA"
From the aforesaid procedure laid down in Annexure-4 to the Master Plan, 2021 as well as regulations of the Master Plan, it is crystal clear that Primary and Higher Secondary/Intermediate School have been shown against serial No. 5.9 and 5.10 of Matrix and on looking at coloured boxes against serial No. 5.9. and 6.0 relating to Primary Schools and Intermediate Schools, it would be clear that under Column 2, 3 and 4 relating to 'pre-constructed area', 'residential area' and 'mixed area' 'Developed area' mentioned at the top of the Table. The relevant boxes against serial Nos. 5.9 & 6.0 have been given light blue colour, meaning thereby that Second Procedure is applicable where map could be sanctioned on certain conditions.
Now, we would apt to reproduce Regulation 7.4 of the Master Plan, 2021, which is as under :
"7-4 izeq[k Hkw&mi;ksx tksUl esa l'krZ vuqeU; fdz;[email protected];ksaxksa gsrq vfuok;Z 'krsZ ,oa izfrca/k tksfuax jsxqys'kUl ds Hkkx&5 ds vUrxZr izeq[k Hkw&mi;ksx tksUl esa fofHkUu fdz;kvksa dh vuqeU;rk ls lEcaf/kr xzkfQDl izLrqfrdj.k ¼Matrix½ ls l'krZ vuqeU; fdz;[email protected];ksxksa gsrq dksM la[;k vafdr dh xbZ gSA fofHkUUk Hkw&mi;ksx tksUl esa vuqeU; fdz;[email protected];ksxksa dh vuqKk gsrq dksM la[;k ds vuqlkj fu/kkZfjr vfuok;Z 'krsZ ,oa izfrca/k fuEu izdkj gS& dksM la[;k vuqeU;rk dh vfuok;Z 'krZs ,oa izfrca/k 1 Hkw&ry ij [email protected] vkokl 2 Hkw&ry NksM~dj Åijh ryks ij vkokl 3 Hkw&ry dks NksMdj vuqorhZ rykas ds ry {ks=Qy dk 10 izfr'kr vFkok HkwfoU;kl ekufp= dk -10 izfr'kr dsoy lEcaf/kr deZpkfj;kas gsrq 4 U;wUre 18 eh0 pkSMs ekxZ ij 5 ryiV ekufp= ds vuqlkj ,oa Hkw&[k.M ij vuqeU; vf/kdre vkPNknu dk 10 izfr'kr A 6 U;wure 24 eh0 pkSMs ekxZ ij 7 U;wure 12 eh0 pkSMs ekxZ ij vf/kdre 10 'kS;kvksa rd 8 U;wure 18 eh0 pkSMs ekxZ ij vf/kdre 30 'kS;kvksa rd 9 U;wure 24 eh0 pkSMs ekxZ ij ,oa vf/kdre vuqeU; dqy vPNknu dk 30 izfr'kr 10 Toyu'khy] uk'koku ,oa vkikr oLrqvksa dks NksMdj vU; oLrqvksa dk Hk.Mkj.k 11 dsoy 'kgj dh fodflr vkcknh ds ckgj fu/kkZfjr Lfkkuks ij 12 05 gkWlZ ikoj rd ¼vuqyXUd&2 ds vuqlkj½ U;wure 112 eh0 pkSMs ekxZ ij 13 Hkw[k.M ds dqy {ks=Qy dk 10 izfr'kr l{ke vf/kdkjh ls Lohd`r ryiV ekufp= ds vuqlkjA 14 Hkw[k.M ds dqy {ks=Qy dk 02 izfr'kr l{ke vf/kdkjh ls Lohd`r ryiV ekufp= ds vuqlkjA 15 dsoy vuq"kkafxd mi;ksx gsrq 16 dsoy [kqys :i esa vLFk;h fu/kkZfjr Lfkkukas ij 17 dsoy ladzked jksxksa ls lEcaf/kr 18 U;wUkre 30 eh0 pkSMs ekxZ ij 19 10 gkWlZ ikoj rd ¼vuqyXUd&3 ds vuqlkj½ 20 uxj ds izLrkfor eq[; ekxksZ] xzkeh.k vkcknh ,oa uxjh; lhek ls U;wure 300 eh0 dh nwjh ij 21 dsoy lEcaf/kr lqfo/kk ds mi;ksxkFkZ ,oa ifjlj ds vanj Hkw&vPNknu dk vf/kdre 01 izfr'krA 22 LFky ds dqy 5 izfr'kr {ks= rdA 23 U;wure 12 eh0 pkSMs ekxZ ij From bare perusal of the aforesaid guidelines as well as the conditions enumerated hereinabove and the Map given for land use in the Master Plan, 2021, it reflects that on seeing blue coloured boxes mentioned against serial No. 5.9 & 6.0 relating to Primary Schools and Intermediate Schools, condition Nos. 23, 6 & 6 have been mentioned over those blue boxes against both serial No. 5.9 (Primary School), while condition Nos. 6, 18 & 18 have been mentioned over those blue boxes against both serial No. 6.0 (higher secondary & intermediate school). It also comes out that condition Nos. 23, 6 & 6 have been mentioned in case of primary schools while conditions Nos. 6, 18 & 18 have been mentioned in case of higher secondary/intermediate school. The condition No. 6 lays for 24 meters wide road, condition No. 18 prescribes 30 meters road and condition no. 23 lays down 12 meters road. Thus, it is clear that whether it be primary school or intermediate college, all are to be permitted in all kinds of the pre-constructed, residential and mixed colonies provided the aforesaid conditions as enumerated hereinabove are followed.
It is not in dispute that on making representations against those objections and on showing Master Plan, 2021, the concerned Map Department instituted an enquiry through its department itself and directed one Junior Engineer of the concerned Zone to survey the area and submit its report. Pursuant to the said direction, the Junior Engineer made survey of the entire area and submitted its report dated 8.1.2010, indicating therein that Plot No. B-321 situated at Mahanagar is situated on 30 Mtrs. wide road in a 'pre-constructed colony'. Thus, it satisfies the condition of minimum width of road laid down in the Master Plan, 2021 for construction of a school building in a 'pre-constructed colony'. In the report, it has also been mentioned that a large number of residents of that area have given their 'No Objections' in writing to him.
Counsel for the petitioner, during the course of arguments, on drawing attention towards the order dated 11.8.2010 passed in writ petition No. 2822 of 2009 (MS), has contended that pursuant to the notice published under Section 13 (3) of the Act, 1973, in all 87 objections/suggestions were received and in all the objections, it has been requested that land use must positively be changed so that school may be built, which will be beneficial for the students. On taking note of this fact, a Co-ordinate Bench of this Court has observed that as in real sense absolutely no objection or suggestion has been received, hence, there is no need to issue any further notice to those persons who sent their views. Subsequently, on a query being put to the learned Counsel for the Lucknow Development Authority as to whether in any of the objections/suggestion (communication), there was a single line or a single word against the proposed change of land use or any suggestion regarding any restriction to be imposed while granting permission for change of land use, he has categorically stated that neither there is any such objection nor any such suggestion. The submission is that despite the aforesaid position, the Board, merely relying upon the report of Chief Town and Country Planner to the effect that permission to change the land use of the plot in question would not be appropriate as it will cause and create trouble to the residents of the area, passed the resolution dated 28.8.2010.
From perusal of the impugned resolution dated 28.8.2010, one thing is clear that the Board, while passing the impugned resolution, has neither considered the observation made by a Co-ordinate Bench of this Court in writ petition 2822 of 2009 (MS) vide order dated 11.8.2010 nor the report dated 8.1.2010 submitted by the Junior Engineer-11 or the guidelines/conditions mentioned in Regulation 7.4 of the Master Plan, 2021 nor the guidelines mentioned in Annexure-4 attached to the Master Plan, 2021. It appears that the Board has passed the impugned resolution only on the basis of the report of the Chief Town and Country Planner but we are surprised that while passing the impugned resolution, the Board has not taken into consideration the series of events, as enumerated above. It may be added that the Board has also not considered the fact that whether the report of the Chief Town and Country Planner is in consonance with the Master Plan, 2021 or in breach of Master Plan, 2021. Thus, the impugned resolution has been passed in haste and shows the non-application of proper mind causing serious prejudice and harassment.
It is relevant to point out here that U.P. Urban Planning and Development Act, 1973, and its preamble shows that the same was enacted with an object to provide development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto. The growth in Uttar Pradesh before this enactment was quite haphazard and, therefore, the Government felt that in the developing areas of the State of Uttar Pradesh the problems of town planning and urban development need to be tackled resolutely. As existing local bodies and other authorities in spite of their best efforts were inadequate to cope with these problems to the desired extent, the State Government in order to bring about improvement in the hopeless situation considered it advisable that in such developing areas Development Authorities patterned on the Delhi Development Authority, which was then a model Authority, be established. This is how, on the pattern of Delhi Development Authority, the Lucknow Development Authority, a statutory body, was set up under the Act. Section 7 of the Act states that the object of the Authority shall be to promote and secure the development of the developed area according to plan and for that purpose the Authority shall have the power to do all that what is necessary or expedient for a purpose of such development and for purpose incidental thereto. Section 8(1) of the Act says that the Authority shall, as soon as may be, prepare a master plan for the developed area. Section 8(2)(a) mandates that the master plan shall define the various zones into which the developed area may be divided for the purposes of development and indicate the manner which the land in each zone is proposed to be used. Sub-section (3) of Section 8 states that the master plan may provide for any other matter which may be necessary for the proper development of the development area. Section 9(1) enjoins upon the authority to proceed with the preparation of a zonal development plan for each of the zones into which the development area may be divided simultaneously with the preparation of the master plan or at the earliest thereafter. Section 9(2) describes all that which a zonal development plan may contain. Every plan immediately after its preparation shall be submitted by the authority to the State Government for approval under Section 10(2) and the concerned Government may either approve that with or without modification or reject the same directing the authorities to prepare a fresh plan. It is not in dispute that in the report dated 8.1.2010 submitted by the Junior Engineer, it has specifically been mentioned that number of the residents of that area have given their 'No Objections' in writing to the Junior Engineer and further the then counsel for the Lucknow Development Authority admitted the fact in writ petition No. 2822 of 2009 (MS) that 87 objections/ suggestions have been mentioned but in all, a request was mentioned that land use must positively be changed so that school may be built but the Chief Town and Country Planner, deliberately overlooked the aforesaid facts, has submitted its report and merely on placing reliance upon the said report of the Chief Town and Country Planner, the impugned resolution has been passed by the Board. In other words, we can say here that the Board, without considering the series of events in the case and without affording opportunity of hearing to the petitioner, has passed the impugned nonest resolution merely on the basis of the report of Chief Town and Country Planner.
It may be added here that during the course of hearing, a specific query was put to the learned Counsel for the Lucknow Development Authority that what was the basis on which the Chief Town and Country Planner has opined that permission to change the land use of the plot in question would not be appropriate as it will cause and create trouble for the residents of the area, to which Counsel for the Lucknow Development Authority, has only submitted before us that as per the provisions of Section 13 (1) of Act, 1973, the Chief Town and Country Planner has submitted its report.
From perusal of Section 13 (1), it is manifestly clear that the authority may make only those amendments which do not affect material alterations in the character of the plan. It means the Board do not have an absolute right of amending the master plan or the zonal development plan. The basic characteristic of such a plan cannot be altered by the authority. Only that amendment is permissible under Section 13(1) which does not affect the basic character of the plan. Moreso, a plan cannot be amended so as to denude the plan of such a basic feature. Therefore, the stand of the Lucknow Development Authority in the instant facts and circumstances of the case is not tenable in the eyes of law.
The Apex Court in the case of Meerut Development Authority versus Association of Management Studies and another : 2009 (6) SCC 171, while dealing with the question whether the decision to change land is unreasonable, has held as under :
"Change of land use
58.Now, we proceed to deal with the question whether the decision to change the land use is unreasonable? It was submitted that the decision of the MDA on 15.3.2002 to upturn the decision of 7.7.2001 and change the land use of the disputed plot from educational to housing and not to allot the same to AMS is ex facie arbitrary and unreasonable. We find no merit in this submission.
59.The disputed land in the Master Plan is reserved for `Residential' purpose. The residential category of use is a category in contrast with industrial, agricultural, commercial, recreational, green belt, or institutional category in use. It does not mean exclusive use for housing on every inch of the land. The expression "residential use" in the Master Plan means that the land can be used for housing, various other kinds of uses such as institutional, commercial etc. At any rate this argument need not detain us any further since a categorical statement is made during the course of the hearing of this appeal on behalf of the MDA that the land shall still be made available for educational use and as well as residential. The MDA had earlier relaxed the use and made it for `educational' purpose though it is earmarked for residential use in the Master Plan. There is nothing unreasonable in changing the land use and earmarking it again for `Residential' use.
60. It was submitted that MDA never gave any reason for change of land use in its resolution dated 15.3.2002 nor any reasons were communicated. Once it is clear that the land in the Master Plan was reserved for residential use where educational institutions could also be permitted within that area, it cannot be said that there has been a change of land use as such. At any rate in view of the statement made there is no further controversy that the land in question can be put to both residential and educational use."
In view of the aforesaid proposition of law, we can now safely say that in an area reserved for residential use in the Master Plan, 2021, educational institutions could also be permitted within that area and it will not change the land use as such. In the backdrop of the aforesaid facts, we are of the view that ends of justice would be secured, if we remit the matter to the Lucknow Development Authority to reconsider it afresh, in accordance with law.
For the reasons aforesaid, writ petition No. 8803 of 2010 (M/B) is allowed. The impugned resolution dated 28.8.2010 passed by the Board of Lucknow Development Authority is hereby quashed. The matter is remitted to the Board of Lucknow Development Authority to reconsider it afresh, in accordance with law and in the light of the observations made hereinabove. Since the matter is lingering since long, we hope and trust that the Board of Lucknow Development Authority will make earnest endeavour in deciding the issue afresh, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order.
So far as controversy involved in writ petition No. 2822 (MS) of 2009 and Special Appeal No. 682 of 2009 are concerned, Counsel for the petitioner/City Montessori School, on the basis of instructions submits that unauthorised temporary structures over the plot in question has already been demolished by the petitioner. That being so, it is provided that the authorities of the Lucknow Development Authority will verify the fact as to whether unauthorised temporary structures over the plot in question has been removed by the petitioner or not and if the same has not been removed by the petitioner, Lucknow Development Authority will issue fresh notice to the petitioner for removing such unauthorised temporary structures and on receiving such notice, the petitioner will immediately remove such unauthorised structures, failing which, it will be open for the Lucknow Development Authority to proceed for demolition of the unauthorised temporary structures, in accordance with law.
The writ petition No. 2822 (MS) of 2009 and Special Appeal No. 682 of 2009 stand disposed of finally, in above terms.
Order Date : 5.8.2014 Ajit/-