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CASE NO.: Appeal (civil)  4732 of 2007

PETITIONER: M/s Vishal Properties Pvt. Ltd

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 09/10/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  (Arising out of S.L.P. (C) No. 12531 of 2005) [With T.P. (C) No.846 of 2005]

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.                  2.      Challenge in this appeal is to the order passed by a  Division Bench of the Allahabad High Court dismissing the  writ petition filed by the appellant questioning correctness of  the orders dated 27.10.2004 and 31.3.2005 passed by the  officers of New Okhla Industrial Development Authority (in  short \021NOIDA\022) and praying for a direction to the respondents  not to interfere with the possession of the appellant with plot  no.P-1, Sector -18, NOIDA. 3.      The notice in question was issued for unauthorized  additional construction and change of user of land.  The notice  dated 21.4.2004 was issued by NOIDA under Section 10(1) of  the U.P. Industrial Development Act, 1976 (hereinafter referred  to as the \021Act\022). It was indicated in the notice that at the time of  inspection on 21.4.2004 it was found that the appellant had  violated the building bye-laws and directions and terms and  conditions in the lease deed which act prejudicially affected  the proper planning and amenities of the industrial  development area which was against interest of general public.  Therefore, appellant was required to remove the unauthorized  construction within a period of 15 days and bring the  construction in conformity with the sanctioned plan so that  interest of the general public was not adversely affected.  It  was subsequently pointed out that the appellant was not  using the ground floor as per the rules and conditions  imposed. It was also mentioned that in the event the appellant  failed to do the needful, NOIDA was to get the illegal  construction removed at the cost of the appellant. Since there  was no compliance with the direction, another notice dated  23.8.2004 was sent to the appellant.  He was again required to  comply with the directions contained in the earlier notice as  the ground floor and service floor were not being used as per  the conditions of the lease deed. Reply dated 23.9.2004 was  submitted by the appellant. It was pointed out that the  appellant had completed the construction on 9.10.1992 and  completion certificate was issued thereafter. The appellant had  not made any construction and the allegations contained in  the notice were incorrect. The letter was followed by another  letter dated 7.10.2004 in which the request was made by the  appellant for changed user of ground floor and upper ground  floor. This request of the appellant was rejected by the NOIDA

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in terms of the communication dated 27.10.2004. It was  pointed out that the ground floor was required for exclusive  use for parking, but it was being used otherwise and even the  basement was being used as office.                 

4.      Challenging the order dated October 27, 2004, the  appellant filed writ petition before the Allahabad High Court  which was disposed of on December 23, 2004, with direction  that the appellant\022s reply dated December 8, 2004 should be  decided if not already done by a speaking order. On 31.3.2005,  representation filed by the appellant was rejected. The  appellant took the stand that he should be permitted to use  these floors as was done in the cases of lessees of plot nos. P-4  and P-5 and P-6. The High Court found that appellant made a  bare denial relating to allegations contained in the notices that  ground floor and the service floors were not being used in  accordance with the terms and conditions.   

5.      Stand of the appellant that there was no contravention  was also turned down.  The High Court also noted that there  was no question of any advantage being granted by the  appellant for the purpose of permission granted to the lessor  in respect of some other plots. Even in case of allotment of plot  No.P-2 and P-3 a departure was made. The writ petition was  accordingly dismissed. 6.      Stand of the appellant in the appeal was that  discrimination is being made vis-‘-vis some others. It is stated  that change of policy on the question of regularization was  done and the benefit which has been extended to others  should be allowed to the appellant.

7.      It is stated that there is nothing sacrosanct about clause  10(a) upon which the respondents have relied. The same can  be modified by the Chief Executive Officer, NOIDA.

8.      Learned counsel for the respondents submitted that  there is no question of any discrimination. In fact, the NOIDA  have already issued notice to the persons to whom certain  benefits as claimed by the appellant were purportedly given.  There is no dispute that unauthorized additions have been  made. It is submitted that construction was completed in  1990.  The completion certificate was issued on 19.4.1993.  The representations were made on 11.5.1993 and 5.7.1993.   In 1995-96 a new scheme with fresh policy was introduced  which was made applicable to all adjoining plots P-3, P-4, P-5  and P-6. Additional affidavit has been filed on behalf of the  respondents 2, 3 and 4, inter alia, stating that on 29.6.2004,  the Chairman of the Industrial Committee vide communication  to the Chief Secretary, Industrial Development, Government of  U.P., and others informed that irregularities have been  committed by NOIDA during the period from 20.5.2002 to  29.8.2003 in the construction of the plot nos.P-5 and P-6.  Further action has also been taken against allottees in respect  of plot nos.P-5 and P-6 for violating the norms/conditions of  the allotment/lease. It is also stated that the notice has been  issued/is being issued to find out the irregularities, if any,  committed in respect of other plots.        

9.      When the representation was made by the appellant in  1993 there was no policy in question. In fact, the change of  policy came subsequently. The authorities may have acted in  an irregular manner in case of some others. That does not  confer any legal right on the appellant to claim a similar  benefit.  So far as the allotment of plot nos.P-5 and P-6 are  concerned, they stand on different footing. The conditions in

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the brochure issued in the year 1995-96 were different.   Relevant Clause of the aforesaid scheme reads as follows:

    \023\005.Use/Uses: The basement and ground  floor may be used for shops/showrooms,  subject to the conditions that the activities  considered to be a public nuisance/hazard  shall not be out and that on all other floors the  commercial activities institutional/residential  use shall be allowed got the act to the  condition that no public nuisance is caused.\024                  

10.     Immediately, after completion of the commercial building  appellant submitted letters dated 1.5.1993 and 5.7.1993 for  change in user of ground floor from parking place to shops.   No approval was granted for such change or user and change  the user for which notices were issued. The relevant terms and  conditions contained in the brochure in question read as  follows:

6. \023Approval of drawings (a) The successful bidder will start the construction  after obtaining due approva1 of building plans by  competent authority. (b) The architectural control drawings for the plot  shall be exhibited at the time of auction. The  successful bidder shall have to purchase the  architectural control drawings from New Okhla  Industrial Development Authority on payment.  Thereafter the allottee shall get the plans prepared  from the architects on the basis of the architectural  control drawings received from New Okhla  Industrial Development Authority and obtain  sanction of the same from New Okhla Industrial  Development Authority as per Building Regulations  and Directions and procedures laid down by the  Authority. The allottee will then carry on the  construction of the building strictly in accordance  with the sanctioned plans obtained from New Okhla  Industrial Development Authority. On completion of  the building, the allottee shall obtain completion  certificate from New Okhla Industrial Development  Authority as per the procedure laid down by the  Authority before occupying the building. The notes,  specifications and other stipulations mentioned in  the architectural control drawings shall be strictly  adhered to. No addition/alteration shall be carried  out by the allottee or the purchasers of floor area  after obtaining completion certificate, without  getting necessary permission and sanction from the  Authority. 6. (c)(i) The Ground floor (of the building  constructed on the allotted commercial office plot)  will be exclusively used for parking and no  temporary or permanent construction of any sort  would be allowed in any circumstances. 6. (c)(ii) Construction of basement is optional and if  constructed shall be as per architectural control  drawings and building plans approved by the  Authority. The basement shall be strictly used for  services and storage purpose. 6. (c)(iii) No barricade or boundary wall will be  permitted on any side on the plot and there will be  free access from one plot to another on the ground  floor.

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6. (c)(iv) The first floor of the building constructed  on the allotted plot will be used for showroom cum- office only. 6. (c)(v) The remaining upper floor\022s constructed will  be exclusively used for offices only and for no other  purpose. 6. (c)(vi) The area on each floor includes area of  balcony also. No projection on any side will be  allowed beyond proposed plot line.\023 (Emphasis  Supplied)

11.     Subsequently the lease deed dated 8th August, 1990 was  executed between the appellant and NOIDA. The terms and  conditions contained in the brochure were repeated in the  lease deed. The relevant clauses of the lease deed are quoted  below:             \023X(A). The ground floor (of the building  constructed on the allotted office plot) will be  exclusively used for parking and no temporary or  permanent construction of any sort would be  allowed in any circumstances. X(B). Construction of basement is optional and if  constructed, shall be as per architectural control  drawing and building plans approved by the lessor. X(C). No barricade or boundary wall will be  permitted on any side of the plot and there will be  free access from one plot to another on the ground  floor. X(D). The first and above floors of the building  constructed on the allotted plot will be exclusively  used for showroom-cum-office only. The above  floors of the building constructed on the allotted  plot will be exclusively used for office only and for  no other purpose. XI. - That the lessee shall obey and submit the  rules, building regulations and directions of the  lessor, and proper municipal or other authority now  existing or hereinafter to exist, so far as the same  relate to the immovable property in the said area so  far as they affect the health, safety and convenience  of the other inhabitants of the place.         \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005         \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

XIV. (A) The plot or building thereon shall not be  used for a purpose other than that specified in the  lease deed and architectural control drawings  prescribed by the lessor. The architectural control  drawings will be supplied by the lessor on payment  of the prescribed fee by the allottee who shall carry  out construction of the plot strictly in accordance  with the same after the approval from the lessor.      \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005         \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

XXI. If the lessee does not abide by the terms and  conditions and building rules or any other rules  framed by the Authority, the lease may be cancelled  by the lessor and the lessee in such event will not  be entitled to claim any compensation in respect  thereof.\024 (Emphasis Supplied)

12.     Even otherwise, Article 14 is not meant to perpetuate an  illegality. It provides for positive equality and not negative

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equality. Therefore, we are not bound to direct any Authority  to repeat the wrong action done by it earlier. In Sushanta  Tagore & Ors. Vs. Union of India & Ors., (2005 (3) SCC 16),  this Court rejected such a contention as sought to be  advanced in the present case by observing:-            \023Only because some advantages would  ensue to the people in general by reason of the  proposed development, the same would not  mean that the ecology of the place would be  sacrificed. Only because some encroachments  have been made and unauthorised buildings  have been constructed, the same by itself  cannot be a good ground for allowing other  constructional activities to come up which  would be in violation of the provisions of the  Act. Illegal encroachments, if any, may be  removed in accordance with law. It is trite law  that there is no equality in illegality.\024       13.     This view also finds support from the judgments of the  this Court in Snehprabha v. State of U.P. & Ors., (AIR 1996  SC 540); Secretary, Jaipur Development Authority, Jaipur v.  Daulat Mal Jam & Ors., (1997 (1) SCC 35), State of Haryana &  Ors. v. Ram Kumar Mann, (1997 (3) SCC 321), and Faridabad  C.T. Scan Centre v. D.G. Health Services & Ors. (1997 (7) SCC  752).

14.     In Finance Commissioner (Revenue) v. Gulab Chandra &  Anr. (2001 AIR SCW 4774) this Court rejected the contention  that as other similarly situated persons had been retained in  service, persons senior to the petitioner could not have been  discharged during the period of probation observing that even  if no action had been taken in similar situation against  similarly situated persons then too it did not confer any legal  right upon the petitioner.       15.     In Jalandhar Improvement Trust v. Sampuran Singh,  (AIR 1999 SC 1347) and Union of India & Ors. v. Rakesh  Kumar (AIR 2001 SC 1877), this Court held that Courts  cannot issue a direction that the same mistake be perpetuated  on the ground of discrimination or hardship.       16.     Any action/order contrary to law does not confer any  right upon any person for similar treatment. (See: State of  Punjab & Ors. v. Dr. Rajeev Sarwal, (1999 (9) SCC 240);  Yogesh Kumar & Ors. v. Government of NCT Delhi & Ors.,  (2003 (3) SCC 548); Union of India & Anr. v. International  Trading Company & Anr., (2003 (5) SCC 437) and M/s Anand  Button Ltd. v. State of Haryana & Ors. (2005 AIR SCW 67).

17.     Recently in State of Kerala v. K. Prasad & Anr. (JT 2007  (9) SC 140), it was inter alia held as follows:

\02314. Dealing with such pleas at some length,  this Court in Chandigarh Administration &  Anr. v. Jagjit Singh & Anr. has held that if the  order in favour of the other person is found to  be contrary to law or not warranted in the  facts and circumstances of his case, it is  obvious that such illegal or unwarranted order  cannot be made the basis of issuing a writ  compelling the authority to repeat the illegality  or to pass another unwarranted order. The  extraordinary and discretionary power of the

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High Court under Article 226 cannot be  exercised for such a purpose. This position in  law is well settled by a catena of decisions of  this Court. [See: Secretary, Jaipur  Development Authority, Jaipur v. Daulat Mal  Jain & Ors. and Exta Shakti Foundation v.  Govt. of N.C.T. of Delhi. It would, thus, suffice  to say that an order made in favour of a person  in violation of the prescribed procedure cannot  form a legal premise for any other person to  claim parity with the said illegal or irregular  order. A judicial forum cannot be used to  perpetuate the illegalities.\024   

18.     In view of the factual position, the actions of the  respondents are not without sanction of law. Appeal is sans  merit, deserves dismissal, which we direct.        

T.P. (C) No.846 of 2005

19.     In view of our order in Civil Appeal No. ________of  2007  (Arising out of S.L.P. (C) No. 12531 of 2005), no further order  is necessary to be passed in Transfer Petition.