Hon'ble S.N.H.Zaidi, J.
Heard Shri Prashant Chandra, learned Senior Advocate, assisted by Shri H.G S. Parihar, for the petitioners, Shri Altaf Mansoor, learned counsel for opposite party no. 5 and Shri Shobit Mohan Shukla, holding brief of Shri D.K. Upadhyaya for the Lucknow Development Authority.
This writ petition filed by M/s Misthi Constructions Private Ltd. and its Director Shri Sanjay Pandey challenges the order passed by the Vice Chairman, Lucknow Development Authority dated 4.8.2009, by means of which the sanctioned building plan for raising construction over the land in question has been cancelled on the ground that; (1) the building plan which was forwarded to the Chief Fire Officer, Lucknow by the Lucknow Development Authority does not appear to have the original signature of Smt. Zubaida Shahanshah, which is evident from the maps on file (Sl.Nos. 127 to 133); (II) the affidavit, which was filed for obtaining the No Objection Certificate from Lucknow Nagar Nigam, does not appear to bear the signatures of Smt. Zubaida Shahanshah.
The brief facts necessary for the adjudication of the controversy raised are as follows:-
Undisputedly, Smt. Zubeida Shahanshah, opposite party no. 5 is the owner of the plot in question and she entered into a registered builders agreement with the petitioners for construction of residential flats over plot no. 25/22 situate at 13- Jopling Road, Lucknow (now known as Lajpat Rai Marg, Lucknow).
The terms and conditions for the said construction, between the builders and the owners, were provided in the agreement.
The petitioners have given the history of litigation showing that on execution of the said agreement, the disputes were raised by the alleged co-sharers or partners, who were claiming ownership right over the said plot, who felt aggrieved by the builders (petitioner no. 1) and the petitioner no. 2 and opposite party no. 5. and in some of the suits, the builders were also arrayed as defendants alongwith opposite party no. 5. All the suits were contested as co-defendants by the builders (petitioners) as well as owner, namely, opposite party no. 5.
There were three regular suits. Regular Suit No. 401 of 1995 was filed by one Syed Shariq Ali against opposite party no. 5 and her father and mother for declaration of ownership rights over 2/3rd share in the property and also for grant of permanent injunction, in which on 18.8.2006, a compromise was entered into between the parties.
Regular Suit No. 250 of 2006 was filed by Syed Zaid Husain Kazmi and others against opposite party no. 5, her father Akbar Shahanshah and Director Sanjay Pandey (petitioner no. 2) for permanent injunction and one Musarrat Husain also claimed title by means of a Will over the property in question which was withdrawn on 31.4.2008 i.e. after the building plan was submitted for sanction. Regular Suit No. 286 of 2006 was filed by Gaurav Chaudhary against opposite party no. 5 and mother and petitioner no. 2, namely, director of M/s Misthi Constructions Private Ltd, which was dismissed on 6.2.2007.
It is the case of the petitioners, which could not be controverted by opposite party no. 5, that the building plans were furnished to the L.D.A for being sanctioned on 29.5.2007. It is also the admitted case of both the parties sides that original building plan was submitted for sanction under the signature of opposite party no. 5.
It appears that on 16.7.2007, the Fire Department issued No Objection Certificate for the purpose of sanction of the Map and the Nagar Nigam also issued No Objection Certificate on 16.4.2008. When the plans were pending consideration for sanction, on 20.7.2007 the L.D.A. issued notice to opposite party no. 5 raising some objection regarding the boundary (area) and constructions existing over the land.
The petitioners' case is that to remove the said objections, opposite party no. 5 moved an application on 20.9.2007 before the Tehsildar, Lucknow enclosing the site map for determination of boundary, mentioning the area of premises as 2591.12 sq. mtr. which was not disputed. The Lekhpal conducted the spot survey and also recorded the statement of mother and father of opposite party no. 5 and also of one Dr. A.A. Khan and submitted his report which was counter-signed by the Tehsildar. It is the further case of the petitioners that in September, 2007, to remove the objections raised by LDA, opposite party no. 5 moved an application before the LDA and also enclosed the revised map showing the same area i.e. 2591 sq. mtr. as was shown in the earlier map submitted before the LDA on 29.5.2007.
The copies of these applications alongwith the report of Tehsildar and the statements of father, mother and neighbour of opposite party no. 5 have also been brought on record.
Shri Altaf Mansoor, though did not dispute the aforesaid documents which have been brought on record by means of rejoinder affidavit (nor there is any denial to the averments made in the writ petition) despite the fact that rejoinder affidavit was served upon the counsel for opposite party no. 5 on 27.1.2010. However, Shri Altaf Mansoor orally argued that the area mentioned therein is not the correct area as was agreed to between the parties.
Needless to state that rejoinder affidavit forms part of pleadings, therefore, uncontroverted factual averments, supported by documents, made therein have to be taken as correct.
The main thrust of the learned counsel for the petitioners is that two grounds on which sanctioned plan has been cancelled were non existent and in any case it was beyond the scope and authority of the Vice Chairman LDA to delve on these issues, particularly when the No Objection Certificate issued by the fire department and the Nagar Nigam were not cancelled by the departments concerned.
His further argument is that the original documents which were filed before the Nagar Nigam for obtaining No Objection Certificate were not before the Vice Chairman and simply on the photo copies of the alleged affidavit and some other documents, which were filed alongwith application of opposite party no. 5 making a prayer for cancellation of the sanctioned plan, the order has been passed and such a finding has been recorded.
The building plan was sanctioned on 25.2.2009 and after deposit of the requisite amount, permission was also granted on 16.3.2009 for construction of building as per sanctioned map. The petitioners allege that the constructions were started immediately thereafter.
However, Shri Altaf Mansoor says that constructions were started in June, 2009. The date of starting constructions is not very relevant for the reasons that if the building plan was sanctioned and permission was also granted, the petitioners could have started constructions as per their own convenience within the prescribed time for starting such constructions, and the fact remains, that before cancellation of the building plan, the construction work was actually started.
Learned counsel for the petitioners has also drawn the attention of this Court to the fact that the Vice Chairman LDA on 9.6.2009 i.e. on the very next day when the aforesaid application for cancellation of sanctioned plan was moved, directed the Executive Engineer to get the sanction cancelled within three days on the basis of affidavit and application made by the opposite party no. 5 even without giving any opportunity of hearing. The order dated 9.6.2009 was challenged by the petitioners in Court by filing writ petition no. 5789 (M/B) of 2009, which order was quashed on 19.6.2009 and direction was issued to the Vice Chairman to take a fresh decision after affording opportunity of hearing to the petitioners.
It was thereafter that the Vice Chairman, LDA passed the order of maintaining status quo and constructions, therefore, did not proceed further.
Section 15 (9) of the U.P. Urban Planning and Development Act, 1973, hereinafter referred to as the Act, gives power to the Vice-Chairman to cancel the permission granted under sub-section (3) of Section 15, and reads as under:
"(9) If at any time after the permission has been granted under sub-section (3), the Vice-Chairman is satisfied that such permission was granted in consequence of any material misrepresentation made or any fraudulent statement or information furnished, he may cancel such permission, for reasons to be recorded in writing and any work done thereunder shall be deemed to have been done without such permission:
Provided that a permission shall not be cancelled without affording to the person or body concerned a reasonable opportunity of being heard."
It, therefore, cannot be disputed that if any of the conditions mentioned in the aforesaid provision is found existing, the Vice-Chairman after giving an opportunity of hearing to the person concerned can cancel the permission, namely, the sanctioned building plan. But this power cannot be exercised arbitrarily or merely on the asking of the person, who himself/herself had applied for sanction of building plan unless ofcourse it is shown that by any action of a third party, the building plan has been sanctioned against the wish of the applicant i.e. by making misrepresentation or by committing fraud.
In case of builders' agreements, entered into between the owners of the land and the builders, the building plans are to be submitted to the concerned authority for their sanction and only thereafter the constructions can be raised. In such matters, normally, it is the interest of both the contracting parties to get the constructions raised and for that matter, the interest of the two parties aforesaid cannot be said to be in conflict and rather, one supports the cause of the other.
Once with clear understanding, after an agreement is entered into between two parties, the building plan is submitted, and in such a case, in all its probability it may not be open for the owner of the land or even for the builder to the contract to withdraw the application for sanction of the plan or to get it cancelled, unless it is established by either of the two parties, who is aggrieved by sanction of the plan, that there is no such agreement or that sanction was obtained by fraudulent means, concealment or misrepresentation etc. strictly in terms of sub-clause (9) of Section 15.
It is also to be seen that once the owner of the land enters into the building agreement with the builder, he/she is interested primarily in sharing profits or benefits, by giving whatever name to such benefits. Usually, in such circumstances, all the works including getting the building plan sanctioned are done by the builder under the express or implied consent of the owner of the land. Unless the owner of the land agrees and enters into such an agreement of raising constructions, there will be no question of sanction of the building plan or for applying for sanction of the plan.
Here, in the instant case, the builders' agreement between the petitioners and the opposite party no. 5, owner of the land, is admitted. Filing of the original application for sanction of the building plan with the consent of opposite party no. 5, under her own signatures is also admitted. It is also established from the record that three regular suits were filed by the alleged co-sharers of opposite party no. 5, in two of which, the Director of the builder company was also impleaded as defendant. They all ended in favour of the owner of the land, namely, opposite party no. 5, may be by means of a compromise between the parties or otherwise, or by withdrawal of the case.
The stand taken by opposite party no. 5 in the said suits was clear about the builders' agreement and she did not raise any dispute about the aforesaid agreement, nor she ever said that she did not intend any building to be raised over the land in question.
This apart, the original building plan was filed under own signatures of opposite party no. 5 and when the Lucknow Development Authority raised some objections regarding actual area of the land in question, the boundaries were got demarcated and the land was measured by the Tahsildar and for this, an application was moved by opposite party no. 5, which is admitted to her. On such recalculation of the area, the revised building plan was furnished to the Lucknow Development Authority.
There is also a finding of the Vice Chairman in the impugned order that undisputedly the building plan in the prescribed proforma was submitted under the signatures of opposite party no. 5 and that she had removed the objections under her own signatures from time to time. However, counsel for the respondent no. 5 disputed the aforesaid finding saying that the respondent no. 5 had not furnished any reply to the objections raised by the Lucknow Development Authority but submission of the original building plan by the opposite party no. 5, under her own signatures, is admitted. However, in view of the finding recorded by the Vice-Chairman on this issue, we do not intend to enter into the controversy beyond that.
The two grounds, on which the building plan has been cancelled, have been mentioned above in the earlier part of this judgment and the reason for cancellation of sanction given by the Vice-Chairman is that alongwith the affidavit and the application filed by opposite party no. 5 for cancelling the building plan, she had annexed a photocopy of the affidavit which was filed before the Nagar Nigam for obtaining No Objection Certificate which does not contain genuine signatures of opposite party no. 5.
The Vice-Chairman, on seeing the signatures on the photocopy of the affidavit has recorded a finding that they are not the signatures of Smt. Zubeida Shahanshah, opposite party no. 5. Being satisfied that they are not the signatures of Smt. Zubeida Shahansha on the affidavit filed before the Nagar Nigam for obtaining No Objection Certificate, and rejecting the plea of the petitioner that the opposite party no. 5 might have deliberately made different signatures, observed that the signatures differ.
Likewise, it has also been observed that for obtaining No Objection Certificate from the Fire Department, on the file relating to building plan which was forwarded by the Lucknow Development Authority to the Chief Fire Officer, Lucknow, it appears that the signatures mentioned at serial nos. 127 to 133 are not the original signatures of opposite party no. 5. This finding has been recorded on seeing the signatures of opposite party no. 5 on the aforesaid document.
The Vice Chairman, Lucknow Development Authority did not even summon the original record from the Nagar Nigam and merely on the basis of photocopy of the affidavit, said to have been filed before the Nagar Nigam, has recorded the finding as aforesaid. In the matter of No Objection Certificate granted by the Fire Department also, it is the own assessment of the Vice-Chairman that the signatures of opposite party no. 5 do not tally.
The cancellation of the sanction of the building plan on the basis of the signatures of opposite party no. 5 in the photo-copy of the affidavit and without even calling for the original documents, cannot be sustained in law.
One more aspect which has not been considered by the Vice Chairman is that the No Objection Certificates issued by the Nagar Nigam as well as the Chief Fire Officer have not been cancelled and rather, no effort has been made by opposite party no. 5 to get these certificates cancelled by raising a grievance before the authorities concerned about the alleged fraud, said to have been committed by the petitioners in obtaining No Objection Certificates.
If the certificates aforesaid have not been cancelled by the concerned authorities, the Vice Chairman was having no authority to discard these certificates or to question the grant thereof. No provision has been shown to us under which the Vice Chairman could have made such an enquiry i.e. enquiry regarding validity of the issuance of the No Objection Certificates by the Nagar Nigam and the Chief Fire Officer, and to record a finding on the genuineness of the signatures of opposite party no. 5 so as to nullify the effect of the two No Objection Certificates, though he has no authority to cancel the said certificates.
It also cannot be lost sight of that the agreement between the petitioners and the opposite party no. 5 was entered into on 10.10.2005. Regular suits were filed thereafter by the co-sharers of opposite party no. 5 in the year 2006, one of which was withdrawn as late as on 30.4.2008 i.e. after more than three years from the date when the builders' agreement was entered into. In the meantime, building plan was submitted to the Lucknow Development Authority by opposite party no. 5 for its sanction on 29.5.2007. During all this period, the opposite party did not raise even a little finger against the sanction of building plan. Not only this, when the objection was raised regarding actual area of the land, she willingly participated by moving an application before the Tahsildar for demarcation of boundaries and also for measuring the area. She moved the application on 20.9.2007 i.e. after four months of the submission of the building plan, to the Lucknow Development Authority and thereafter the report was submitted by the Tahsildar. No Objection Certificates by the Chief Fire Officer and the Nagar Nigam were issued on 16.7.2007 and 16.4.2008 respectively. The building plans were sanctioned on 25.2.2009 and permit for raising constructions, was granted on 16.3.2009. The petitioners then had started constructions and it was only on 8.6.2009 that the opposite party no. 5 moved an application for cancellation of building plan. Thus, the opposite party no. 5 did not object to the sanction granted for all this time, but only objected to it, after four months from the date of sanction, when constructions started.
The conduct of opposite party no. 5 persuades us to hold that it was not a bona fide application moved by her for cancellation of the building plan. She was also a beneficiary of the same builders' agreement and for that reason, she had moved the application for sanction of the building plan. It can also not be ruled out that subsequent actions were taken by the builders for getting the building plan sanctioned with the consent and knowledge of opposite party no. 5 and though she knew that it was with her consent and knowledge, that the required No Objection Certificates were applied for and obtained both from the Nagar Nigam and the Fire Department, she has tried to take advantage of the alleged discrepancy in her signatures, in obtaining No Objection Certificates from the Nagar Nigam and Fire Department, though the building plan was sanctioned on 25.2.2009 and permit was granted on 16.3.2009. The petitioners and the opposite party no. 5 jointly contested all the suits, where claims of being co-sharers were put forward by different persons. This shows that the opposite party no. 5 all throughout was willing to get the plans sanctioned, but later on, took entirely a different stand.
Under the circumstances, aforesaid, the opposite party no. 5 cannot be allowed to take advantage of her own conduct and even of her own default, if any. The facts and circumstances of the case, constrain us to observe, that the 'No Objection Certificates' were obtained by the petitioners, for their own and for the benefit of the opposite party no. 5, with her consent and knowledge in furtherance of the execution of the terms of agreement, which admittedly was entered into between them. The discrepancy in signatures, assuming if any, will not give a cause of action or grievance to the opposite party no. 5 to seek cancellation of the building plan, nor it can be said that any fraud was committed by the petitioners or they made any misrepresentation to the Lucknow Development Authority.
There was complete silence on the part of opposite party no. 5 for such a long time after submission of the building plan for sanction, during which period all formalities including the issuance of No Objection Certificates were undertaken. As a person of ordinary prudence, she is supposed to know that such certificates can be issued only when applied for, but at no point of time before sanction of the building plan, she ever enquired from the Lucknow Development Authority about the fate of the building plan submitted for sanction. This goes to show that she was not at all aggrieved by the sanction of the building plan and throughout was willing for its sanction, but as an afterthought, for reasons best known to her, subsequently she took the present stand. It cannot be presumed that after submission of the building plan, if opposite party no. 5 was not interested in sanction of the building plan, she would leave the matter at the whims of the Lucknow Development Authority and would not even try to find out as to what had happened to the building plan.
In view of the findings recorded above, the Vice Chairman, Lucknow Development Authority was not competent to look into the validity of the No Objection Certificates issued by the Nagar Nigam and the Fire Department and there being no ground for cancellation of the sanctioned building plan in terms of Section 15(9) of the Act, the order passed by him cannot be sustained. Besides, the action of the opposite party no. 5 in moving for the cancellation of the permission cannot be said to be bona fide. The cancellation order is, therefore, per se illegal and arbitrary.
The order impugned, therefore, deserves to be quashed, which is hereby quashed.
The writ petition stands allowed.
8.12.2010 Rizvi/LN/-