Allowed

Awdhesh Kumar Maurya and 16 Others v. State of U.P. and 2 Ors.

Allahabad HC13 Feb 2018WRIC/18355/2015

Case brief

AI extract

What is this about?

Writ petition challenged construction of cremation ground on land marked as Recreational Green by Master Plan. Court held authority violated law by failing to follow mandated amendment procedure under 1991 Regulations, thus directing cessation of construction.

What did the court decide?

Respondents directed to refrain from construction in Khasra No.69 without following procedure established by law.

Awdhesh Kumar Maurya and 16 Others Vs State of… — Municipal and Town Planning | Allahabad HC (2018)

AFR

Court No.-34

Case :- WRIT - C No. - 18355 of 2015 Petitioner :- Awdhesh Kumar Maurya And 16 Others Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Vivek Chaudhary,Pankaj Bhatia,Rahul Mishra Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh

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Hon'ble Sudhir Agarwal,J. Hon'ble Siddharth,J.

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Heard Shri Pankaj Bhatia assisted by Shri Rahul Mishra, learned counsel for petitioners and Shri Ramendra Pratap Singh, learned counsel for respondents.

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Petitioners have approached this Court for direction to the respondents to stop construction of cremation and burial grounds opposite to the societies of petitioners over land marked as “Recreational Green” in Master Plan.

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Brief facts of the petition are that petitioners 1 to 12 are allottees of flats /units in towers of Green View–II Sahakari Avas Samiti Limited, which is a residential colony constructed on Plot No.4, Sector-Pi,Greater Noida, Gautam Buddh Nagar, Uttar Pradesh. The said colony comprises of many multi-storey towers, having more than 400 flats/ units. These towers are still under construction. Most of the Civil Work of the flats are completed. Petitioners 13 to 17 are residents of Jyoti Kiran Society, situated on Plot No.3, Sector-Pi, Greater Noida, Gautam Buddh Nagar, Uttar Pradesh. Construction of the Society is already completed and petitioners 3 to 7 are residing in

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their respective houses therein. There are many other similar multi-storey residential societies adjacent to aforesaid society having large number of residential flats. In the Master Plan, area wherein these societies exist/being developed is described and marked as “Residential”. Plot No.4, on which Green View-II, Sahakari Avas Samiti Limited is being constructed and neighboring plot no.3, whereon Jyoti Kiran Society is situated and adjacent to which other societies exist, are facing a 60 meter wide road. The land across the said 60 meters road in the Master Plan is described and marked as “Recreational Green”. It consists of Khasra No.69, Village Biraundi Chraksenpur, Pargana Dadari, Tehsil and District Gautam Buddh Nagar.

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Petitioners purchased flats in the aforesaid society only after going through Master Plan in the area and finding society having good surroundings. In February, 2015, Petitioners noticed development and construction of cremation and burial ground in Khasra No.69, marked as “Recreational Green” in Master Plan. On enquiry they found aforesaid construction being done on direction of District Magistrate. On further enquiry, petitioners found that plot no.69 was never acquired by State Government and it is owned by a private party. Therefore, respondents have no authority to construct cremation and burial ground thereon in violation of Master Plan. After unsuccessfully approaching respondents by way of representations, petitioners have approached this Court by means of this writ petition.

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Respondents initially filed their Short Counter

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Affidavit stating that on the request of Pradhan of Village, cremation ground which existed on Plot No.81, Village Birondi is being shifted to plot no.69 which falls near the Village and was recorded as burial ground. Plot No.69 is approximately 150 meters away from 60 meter wide road and cremation ground has been shifted thereon on the request of Villagers.

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Respondents have later filed a Counter Affidavit on behalf of respondent 3, Greater Noida Industrial Development Authority (hereinafter referred to as “GNOIDA”), stating that plot no.69M/0.5060 is recorded as Kabristan and an area of 5.7370 hectare has been directly purchased from Khasra No.69M by the authority from the Tenure holders. Therefore, it is not correct that Kabristan is being created over plot no.69-M. The cremation ground was earlier existing on Khasra No.81. This Khasra no.81 is recorded as Shamshan in Khata No.75Ga Khatauni (annual register) 1421-1426 fasli. The existing cremation ground is being shifted by a few meters, so as now to be located adjacent to existing Kabristan so that the last rites of both communities could be performed at an area which is properly accessable but off the main road and surrounded by dense plantation. The cremation ground was earlier existing on Khasra No.81. The distance between existing and proposed cremation ground, taking the distance from corner to corner, is mere 85 meters. A shifting of existing cremation and burial ground by a few meters duly is taking place and that too on the request of Villagers. The area across 60 meters wide road, as per Master Plan, has the land

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use as “recreational green”. As per Master Plan and also NCR Plan, 2021, an area for Hindu cremation ground or a Muslim burial ground can be constructed/demarcated in such a sector having land use of recreational green. Part of land of villages Biraundi, Aichar, Nawada, Jaitpur Vaishpur has been utilized for demarcation and creation of “recreational green sector”. The cremation ground and burial ground have existed in Revenue records even prior to the date on which Sector Pi-1 and 2 were carved out, let alone allotment and construction of flats in which petitioners allege to be residing/purchased. Plot no.3, Sector Pi was allotted on 31.12.200 while Revenue record back to at least 1994 shows existence of Kabristan and cremation ground in village Biraundi Chakrasenpur. The land in question, however, falls in Village Biraundi. Even before the land of Village Biraundi was acquired, there already existed a Hindu cremation ground adjacent to an existing pond and also a Muslim burial ground at a distance of merely 85 meters. from the place where work of construction of Hindu cremation ground and Muslim burial is being done. Existence of cremation or burial ground is a human necessity and almost every village has an area specified for the said purpose. The residents of village are attached to such a place. The entrance of cremation and burial ground will not open on 60 meters wide road. Cremation ground and burial ground would be enclosed within a wall and surrounded on all sides by a thick green belt where dense plantation of green trees would be done. Writ petitioners have wrongly alleged that a Kabristan was designated by answering respondent in

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February 2015. Only an enclosure of the area already recorded as Kabristan was underway. It is not uncommon that a cremation and burial grounds are adjacent to each other. A striking example of adjacent cremation and burial ground exists almost opposite Lodhi Hotel at Mathura Road, New Delhi-3 where both the places have access from Main Road and on the other side without even a green belt they are surrounded by posh residential houses. Having proper burial and cremation ground is a necessity and no person can try to be oblivious to this necessity. The construction was proposed at the cost of GNOIDA, which has nothing to gain except to provide proper facility for cremation and burial. It is not necessary that unless land is acquired, only then GNOIDA can carry out construction. In case of public utility land, GNOIDA, at times on the reference of District Magistrate or the villagers, does carry out beautification or renovation work etc., which in the instant case would be enclosing Kabristan and burial ground with walls and having dense plantation all ground. GNOIDA has never claimed that the Khasra No.69 is acquired land. The said Khasra No.69 is not owned by any private person. Banjar and Kabristan land would always vest in State or its local authorities. Therefore, reference to the acquisition notification is totally misplaced. It is really strange that on the one hand, Petitioners state that Khasra No.69 is not acquired land and on the other hand, they state that the area is part of “recreational green”. As per planning norms, cremation and burial ground can exist in an area of which the land use is marked as “recreational green”. The residents of

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Jyoti Kiran Society have not raised any objection of the kind raised by the petitioners in this writ petition. The residential flats have been permitted to be constructed for the reason that the Sector, as per Master Plan has residential land use. It is wrong that any illegal construction has been made by GNOIDA or that the construction is contrary to Master Plan or land use of “Recreational Green”. As per planning norms of NCR Planning Board and that of NCR Master Plan, 2021, it is permissible to have cremation and burial ground in the land use “Recreational Green”. It is submitted that GNOIDA is developing city as approved by NCRPB 2021 plan and every measure is taken to keep the city pollution free.

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Petitioners have filed Rejoinder Affidavit stating that it is false to allege that burial ground/ kabristan exists over khasra no.69, when in the khatauni 1421-1426F the same is recorded as banjar. In fact plot no.81 is recorded as Shamshan/Hindu cremation ground. As per revenue record of village Biraundi Chakersenpur, it is a public utility land, defined under Section 132 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as “U.P. Act, 1950”) and can not be shifted or exchanged on the request of villagers. Respondents have no right to alter land use and they have not filed any evidence on record to prove their averment that plot 69 was purchased by GNOIDA from Tenure holders. There is no revenue entry in record to this effect.

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After hearing rival contentions it is clear that the land in dispute falls within the development area of GNOIDA.

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The plan for development of Industrial Development Area has been prepared as per Regulations 5, 6, 7, 8, 9 and 10 of the New Okhla Industrial Development Area (Preparation & Finalization of Plan) Regulations, 1991 (hereinafter referred to as “Regulation of 1991”) framed in exercise of powers under Section 19 read with Section-6 of the Uttar Pradesh Industrial Area Development Act, 1976 (hereinafter referred to as “U.P. Act, 1976”) by New Okhla Industrial Development Authority (hereinafter referred to as “NOIDA”) for the purpose of proper planning and development of NOIDA.

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For the purpose of amendment in the plan, NOIDA has been conferred power under Regulation 11 of Regulations of 1991 as follows,

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11. Amendment of the Plan. - (1) The Authority may make such amendments in the Plan which do not effect important alteration in the character of the Plan and which do not relate to the extent of land use or standards of population density.

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(2) Before making any amendment in the Plan under sub-section (1), the Authority shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any affected person with regard to the proposed amendment before such date as may be specified in the notice and shall consider all objections that may be received.

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(3) Every amendment made under this Regulation shall be published in any of the manner specified in Regulation 5 and the amendment shall come into operation either on the date of the first publication or on such other date as the Authority may fix.

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(4) The Authority shall not make, during the specified

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period in which the Plan is to remain effective, such amendment(s) in the Plan which affects the important alteration in the character of the Plan and which relates to the extent of the land use or standards of population density.”

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After considering pleadings of the parties, relevant statutory provisions and the arguments of Counsel for respective parties, it is clear that there is no dispute regarding the fact that Plot no.69, whereon the disputed cremation and burial grounds are being sought to be constructed by GNOIDA falls in the area marked as “Recreational Green” in Master Plan. Further there is no dispute that the aforesaid area is across 60 meters road in front of society of petitioners. No documentary evidence has been brought on record by respondents to prove that plot no.69 belongs to GNOIDA. Petitioners have brought on record Khatauni, wherein the plot in dispute is recorded as 'Banjar'. There is no pleading on behalf of respondents that they have changed user of plot no.69 by amending Master Plan as per Regulation-11 of Regulations of 1991.

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Therefore, question is, “whether the land shown as “Recreational Green” in Master Plan of GNOIDA can be changed to burial ground”.

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There is no averment in the Short Counter Affidavit or the Counter Affidavit filed in pursuance of this Court’s order by the GNOIDA that the procedure provided under Regulation- 11 of Regulation, 1991 has been followed. When law requires something to be done in a particular manner, the things done otherwise are prohibited. This principle was recognized in Nazir Ahmad Vs. King-

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Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which we do not propose to refer all but would like to refer a few of them.

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In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment the Court held:

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" 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."

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In Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held:

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"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."

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The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440 .

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In Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477 , it was held :

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"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

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given its due meaning."

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In State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 in para 26 of the judgment, the Court held :

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"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."

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The cumulative effect of various provisions of Statute shows that before finalizing a Master Plan, competent authority shall take all such steps which would include an opportunity to residents of area concerned and others to submit their suggestions, objections, claims etc., and thereafter it shall be finalized. Once "Master Plan" is finalized and submitted to Government and notified, thereafter its sanctity cannot be whittled down in a routine, casual and whimsical manner. Statute imposes an embargo against any action which is not consistent with the plan. However in a changing Society, a status quo for all times to come may not be countenanced. An elbow space thus has to be provided which may authorize a competent Authority/body concerned, in a very very limited manner, to make minor deviations to suit the changes. This has been done vide Regulation 11 of Regulation of 1991. Thereby GNOIDA has been empowered to alter the plan. However before doing so, again a well considered but a bit cumbersome procedure has been provided which entitles the residents and others also to have their say if they so desire. All these checks

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and measures are part of the statute to show that an approved plan has to be adhered as a rule and its deviation is a rarity. The authorities on their own, as and when they like, in a sheer administrative indiscreet manner, cannot clothe upon themselves such power. They, on their own, cannot authoritatively say that a particular change will not substantially alter the Plan or that such alternation can be or should be made.

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Courts have appreciated that a lot of technical, scientific and other concepts are put forth in preparing a master plan for a coordinated systematic development of an area considering multifold aspects including the past, present and future requirement/ objective/purpose etc. They also take care of environment including flora and fauna. The maintenance of greenery is an integral necessity of a planned development for the purpose of maintaining healthy environment. Its importance cannot be undermined. It is for this reason, in every plan, special attention is paid for open land, greenery, that is called green belt, parks, gardens etc. But, then, after approval of plan, when actual execution comes, the first casualty is the area contemplated as open space, green belt, parks etc. Everybody wants to curtail such area by encroaching it, obstructing it, making unauthorised construction etc. It appears that a competition is going on and there is struggle of victory to the more resourceful one. It goes without saying that this competition is equally participated by officials of Authorities also for reasons other than bona fide. In other words, this Court has no hesitation in observing that an over all continuous increasing

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corruption one can see in Development Authorities where the development authorities have changed the meaning of "development authority" and read the words as if it amounts to development of officials of authorities. That being so, here comes the authority of Courts to check, stop and put the things right.

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In D.D. Vyas Vs. Ghaziabad Development Authority, AIR 1993 All. 57 a grievance was raised before this Court about utilization of open space reserved for a park in Ghaziabad either to construct building or otherwise it would defeat the purpose of preservation of environment and development of residential colonies shown in Master Plan. The Court observed that the writ petition is an apt example as to how the statutory object to secure preservation of environment and development can be defeated by authorities who lack dynamism, aestheticism and enthusiasm for development though assigned for development duties. Speaking on the objective of Act, 1973 the Court said that earlier growth in the State was haphazard and feeling necessity of developing areas tackling the problems of town planning and urban development in a rational manner and also to have the suitable expert bodies instead of the existing local bodies, found inadequate to cope with problem with passage of time, the Act was brought and development authorities on the pattern of Delhi Development Authority were established including the GDA at Ghaziabad. In the Master Plan an open space was earmarked for public park called "Adu Park" situated in Raj Nagar. However, no steps were taken for its development and on the contrary

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GDA started carving out plots on such open space dedicated for public park in the plan and alienate the same, with a view to earn huge profits. This was challenged on the ground that GDA cannot alter the plan duly approved by Government to the detriment of public at large. Disapproving such action of GDA and upholding the challenge the Division Bench observed that object of legislation constituting development authorities was to ensure fast and planned development of the areas which was an enormous work and could not be accomplished by the local bodies or authorities existed prior to the Act, 1973. A plan can be said to have executed when entire works are done strictly in accordance with the plan. Unless an open space reserved for development of public park is developed as such, the execution of plan will remain incomplete. Buildings, as proposed in the plan, may have come up, amenities, civic and others may have been provided and the people may have started living in the colony, yet the plan cannot be said to have been executed fully, if an open space meant for a park is not developed as such. Such failure on the part of development authority would mean that ambition and objective of State that the areas reserved and approved to be developed in a particular manner has not been so developed. The duty of development authority is to implement the plan in its entirety and not to distort it. The Court said that the impression gathered by GDA that their job is over when residential area became habitable is a delusion. Habitability and completion of construction work in the entire area according to plan is one thing and

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development in entirety of the area, strictly in conformity with plan is another. In paras 9, 10 and 16, the Court further said:

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"9. It is a matter of great regret that the fond object for which the G.D.A. was constituted remained unaccomplished . The Raj Nagar scheme is meant for the reasonable accomplishment of the statutory object, which is to promote the orderly development of the town Ghaziabad and to preserve open spaces by reserving public parks with a view to protecting the residents from the ill effect of urbanisation. The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the town. No town is known for sky-scrapers, for myriad industries, for big commercial centres, for big monumental building, but for the attractive lay out of the town, for good landscapes, for beautiful parks and lawns, for expansive verdant cover, and for perfect social ecology. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity . In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a

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town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under estimated. Private lawns or public parks are not a luxury , as they were considered in the past. A Public Park is a gift of modern civilisation, and is a significant factor for the improvement of the quality of life. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surrounding was a privilege of few, but now in a democratic set up, it is gift from the people to themselves. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology.

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10. A benefit which one can get from the developed, well maintained and well manicured lawns in a big park, cannot be secured from undeveloped, morbid and shabby, open space. Whereas the former attract and invite the people to come, suit and rest, the latter is always stinky, dirty and abhorrent.

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16. . . . . . Unless an open space is developed into a full-fledged park having gardens, trees, flower beds, plants, lawn, promenade etc., the environment will not improve and therefore the functionaries of the G.D.A. have remained grossly negligent in discharging their fundamental duty enjoined upon them by clause (g) to Article 5-A of the Constitution. Equally they failed to discharge their duty enshrined

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by Article 5-A(j). If the functionaries of the State instrumentalities show their averseness to the developmental activities, which are assigned to them, then the nation can never grow to the cherished heights. An ornamental park with well manicured lawns is not only a source of comfort to the public, but adds to the beauty of a town, as jewellery studded with pearls or diamonds add to the beauty of the person who wears it." (emphasis added)

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Where the authorities are not performing their statutory functions indulging more in violation than maintenance of rule of law, overlooking, ignoring or omitting illegal activities of individuals, private or governmental, as the case may be by doing acts in violation of statutory plans, the Court finds its duty, constitutional and legal both, to cause such authorities to come to task and execute rule of law strictly by issuing a writ of mandamus.

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In Mansukh Lal Vs. State of Gujarat, 1997( 7 ) SCC 622, the Court said:

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"Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature."

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Therefore, it is clear that the Greater Noida Development Authority, respondent no.3 has acted in violation of law and therefore the petitioners are entitled

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to the reliefs prayed as also the litigation cost in view of law laid down by Apex Court in para 36 of Salem Advocate Bar Association (2) Vs. Union of India, (2005) 6 SCC 344, which reads as under:-

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“ Costs

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36. Section 35 of the Code deals with the award of cost and Section 35A with award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of award of cost and compensation. Under Section 95 cost can be awarded upto Rs.50,000/- and under Section 35A , the costs awardable are upto Rs.3,000/-. Section 35B provides for award of cost for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the cost shall follow the event and if not, reasons thereof shall be stated.

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The award of the cost of the suit is in the discretion of the Court. In Sections 35 and 35B , there is no upper limit of amount of cost awardable.

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In the result, writ petition is allowed. The respondents are directed to refrain from construction of cremation and burial ground in khasra no.69, Village Biraundi Chakrasenpur, Pargana Dadari, Tehsil and District Gautam Budh Nagar, without following procedure established by law.

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Petitioners are also entitled to cost which we quantify to Rs.25,000/- against respondents.

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Order Date :- 13.2.2018 Ruchi Agrahari

Awdhesh Kumar Maurya and 16 Others v. State of U.P. and 2 Ors.

Case brief

What is this about?

What did the court decide?

Awdhesh Kumar Maurya and 16 Others v. State of U.P. and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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