Ashok Agarwal Vs State of U.P. Thru. Prin. Secy. Housing and Urban Planning Lko and 4 Others

Court No. - 2

Case :- WRIT - C No. - 8529 of 2022

Petitioner :- Ashok Agarwal Respondent :- State Of U.P. Thru. Prin. Secy. Housing And Urban Planning Lko And 4 Others Counsel for Petitioner :- Manish Vaish,Pravin Kumar Singh Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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Heard Sri Manish Vaish, learned counsel for petitioner, learned State Counsel for the State-respondents and Sri Alok Chauhan, learned counsel representing the Lucknow Development Authority.

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By means of this petition, a challenge has been made to an order dated 01.12.2021 passed by the Prescribed Authority, Lucknow Development Authority under Section 28-A of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'Act 1973'). By the impugned order, certain alleged illegal constructions have been ordered to be sealed.

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On being pointed out that the order under challenge herein is appellable under Section 28-A (4) of the Act 1973 before the Chairman, Lucknow Development Authority/Commissioner of Division, it has been stated by learned counsel for petitioner that appeal on behalf of the petitioner has already been filed on 28.02.2022.

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On a query by the Court as to how the petitioner can be permitted to prosecute two parallel remedies; the one under Section 28-A (4) of the Act, 1973 and other by instituting the proceedings of this writ petition, it has been stated that the order dated 01.12.2021 passed by the Prescribed Authority is completely without jurisdiction and hence the writ petition can be entertained.

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In support of the aforesaid submission, learned counsel for the petitioner has submitted that the provisions of the Act, 1973 are not applicable to the premises in question for the reason that in the premises the petitioner runs a Dal Mill and such establishment is covered by the provisions of U.P. Factories Act, 1948. He has drawn our attention to Section 6 of the Factories Act which provides that the State Government may make rules for various purposes including for the purposes of requiring previous permission in writing of the State

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Government/Chief Inspector to be obtained for the site on which factory is to be situated and for the construction or extension of any factory.

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It has, thus, been submitted that it is only under the Factories Act that previous permission of the State Government/Chief Inspector is required to be obtained for raising any construction or extension of any factory and accordingly the provisions of U.P. Urban Planning and Development Act, 1973 will have no application so far as the premises in question in this case is concerned. Learned counsel for the petitioner has further contended that the Rule 3 of U.P. Factories Rules, 1950 which has been made under Section 6 of the Factories Act, 1948, provides that without approval of the plan, registration and grant of license, no building on a factory site or in a factory shall be constructed, extended or taken into use as a factory. He has further stated that the necessary approval under Section 6 of the Factories Act, 1948 read with Rule 3 of U.P. Factories Rules, 1950 was obtained so far as the premises in question is concerned, in the year 1966 and as such approval of construction in the premises, if any, is needed only to be granted under the Factories Act and not under the Act 1973. He has further argued that in view of the provisions contained in the proviso appended to Section 16, since in the premises in question Dal Mill has been running even from before the U.P. Urban Planning and Development Act was enforced, as such there is no requirement of seeking any permission under Section 14 of the Act, 1973 for raising any kind of construction.

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We have considered the aforesaid submissions made by learned counsel for petitioner, however, all such submissions merit rejection, which are hereby rejected for the following reasons.

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Section 14 of the Act, 1973 clearly mandates that no development shall be undertaken in a development area without permission for such development obtained in writing from the Vice Chairman of the Development authority concerned in accordance with the provision of said Act. The purpose of obtaining permission of the Vice Chairman of the Development Authority under Section 14 of the Act, 1973 is entirely different than the purpose of seeking approval of plans etc. in respect of factories as per the requirement of Section 6 of the Factories Act, 1948 read with Rule 3 of U.P. Factories Rules, 1950.

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The purpose for which the legislature has made it mandatory to obtain sanction/permission under Section 14 of the Act 1973 is to ensure that haphazard urbanization in a development area as defined in Section 3 of the Act 1973 is checked and abated, whereas the purpose of approval under the Factories Act is to

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ensure that the machinery and plants and various processes employed in a factory are such that the same do not cause any harm that is why there are certain requirements which have been made mandatory under Rule 3 of U.P. Factories Rules while seeking approval of plans in respect of a factory. One of the requirements of seeking approval is that anyone seeking approval under the Factories Act has to submit the process flow diagram of manufacturing process, indicating the safety devices, fittings and mountings on such plant and machinery etc. The purpose thus for seeking approval under the Factories Act is to ensure safety, however, the purpose of seeking approval under Section 14 is to check the haphazard urbanization and also to check that no development/construction takes place in violation of any building bye laws etc. made by the Development Authority concerned. The provisions of U.P. Urban Planning and Development Act and those of the Factories Act thus operate in different fields and there is no overlapping in operation of these two enactments.

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Learned counsel for the petitioner has completely failed to show us any provision of any law where operation of U.P. Urban Planning and Development Act has been barred in relation to factories governed by the Factories Act, 1948.

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In view of the aforesaid legal provisions, submission of learned counsel for the petitioner that the provisions of U.P. Urban Planning and Development Act especially Section 14 of the said Act is not applicable to the premises in question, is highly misconceived.

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In this view, it also cannot be said that the order passed by the Prescribed Authority, Lucknow Development Authority, dated 01.12.2021 is without jurisdiction.

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Learned counsel for the petitioner has also argued that the order dated 01.12.2021 passed by the Prescribed Authority has been passed in violation of principles of natural justice inasmuch as that before passing the said order, no notice of any kind was served upon the petitioner. He has further stated that in fact the order is a cyclostyled order where certain gaps have been filled in subsequently. All these grounds may be available to the petitioner while invoking the provisions of Section 28-A (4) of the Act, 1973 by filing the appeal before the Chairman, Lucknow Development Authority, however, since the petitioner has already invoked the remedy of statutory appeal, on these grounds as well, it will not be appropriate for this Court to entertain this petition.

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Learned counsel for the petitioner has also attempted to press into service, in support of his arguments, certain provisions contained in U.P. (Regulations of Building Operations) Act 1958 and the Rules framed thereunder. The said submission is also highly misconceived as provisions of U.P. (Regulations of Building Operations) Act 1958 have been suspended by virtue of Section 59 of U.P. Urban Planning and Development Act, 1973.

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So far as the argument of learned counsel for the petitioner based on the proviso appended to Section 16 of U.P. Urban Planning and Development Act, 1973 is concerned, we are of the considered opinion that the same does not have any application in the present case for the reason that it is in relation to user of the land.

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For all the aforesaid reasons, the writ petition is highly misconceived, which is hereby dismissed.

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We, however, direct that the Chairman, Lucknow Development Authority shall decide the appeal said to have been preferred by the petitioner against the order which is under challenge herein, with expedition, say, within three months from the date of production of certified copy of this order.

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Order Date :- 30.11.2022 Renu/-

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Digitally signed by RENU AGARWAL Date: 2022.12.01 10:25:47 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Ashok Agarwal v. State of U.P. Thru. Prin. Secy. Housing and Urban Planning Lko and 4 Others

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Ashok Agarwal v. State of U.P. Thru. Prin. Secy. Housing and Urban Planning Lko and 4 Others

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