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Vishal Properties (P) Ltd. v. State Of Uttar Pradesh And Others
Factual and Procedural Background
The appellant, lessee of Plot No. P-1, Sector 18, NOIDA, received a notice dated 21-4-2004 under Section 10(1) of the U.P. Industrial Area Development Act, 1976 for having carried out unauthorised additional construction and for changing the sanctioned user of the premises. A follow-up notice dated 23-8-2004 was issued when no corrective action was taken. The appellant replied on 23-9-2004 denying any violation and, by letter dated 7-10-2004, sought permission to change the user of the ground and service floors.
NOIDA rejected the request on 27-10-2004. The appellant challenged that order before the Allahabad High Court, which on 23-12-2004 directed NOIDA to pass a speaking order on a fresh representation. NOIDA again rejected the representation on 31-3-2005. A second writ petition was dismissed by the High Court, prompting the present civil appeal before the Supreme Court. Leave to appeal was granted, and the Court has now delivered its judgment.
Legal Issues Presented
- Whether the appellant is entitled to a direction restraining NOIDA from interfering with his possession and user of the premises despite the alleged unauthorised constructions and change of user.
- Whether refusal of regularisation amounts to unconstitutional discrimination under Article 14 of the Constitution when other lessees of neighbouring plots allegedly obtained similar relief.
- Whether NOIDA’s enforcement actions are vitiated because of an alleged change in policy after the appellant’s initial construction and completion certificate.
Arguments of the Parties
Appellant's Arguments
- NOIDA has discriminated against the appellant by extending the benefit of regularisation to lessees of Plots P-4, P-5 and P-6 but not to him.
- A subsequent change in policy regarding regularisation should be applied uniformly, thereby entitling the appellant to the same benefit.
- Clause 10(a) of the applicable regulations is not immutable and can be modified by the Chief Executive Officer of NOIDA.
Respondents' Arguments
- No discrimination exists; notices have been issued or are being issued to the lessees who allegedly received earlier benefits.
- Unauthorised additions by the appellant are undisputed, and completion in 1990 does not legalise later deviations.
- The 1995-1996 scheme that applied to neighbouring plots introduced materially different conditions; the appellant’s plot is governed by earlier lease terms expressly restricting ground-floor use to parking.
- An illegality committed in another case cannot confer a legal right on the appellant (negative equality is impermissible under Article 14).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sushanta Tagore v. Union of India (2005) 3 SCC 16 | No equality in illegality; public interest overrides unauthorised developments. | Used to reject the claim that benefits granted to others compel similar relief for the appellant. |
| Sneh Prabha v. State of U.P. (1996) 7 SCC 426 | Article 14 ensures positive, not negative, equality. | Cited to emphasise that the Court will not perpetuate earlier illegal actions. |
| Secy., Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 | Illegal orders cannot be relied upon for demanding parity. | Supports refusal to grant relief based on prior irregular concessions. |
| State of Haryana v. Ram Kumar Mann (1997) 3 SCC 321 | Courts cannot direct repetition of an illegality. | Reinforces denial of the appellant’s discrimination plea. |
| Faridabad CT Scan Centre v. D.G. Health Services (1997) 7 SCC 752 | Parity cannot be claimed on the foundation of an illegal act. | Relied upon to negate the appellant’s claim. |
| Financial Commr. (Revenue) v. Gulab Chand (2000) 10 SCC 656 | Inaction against others does not create rights for a petitioner. | Applied to show that earlier omissions by NOIDA do not bestow rights on the appellant. |
| Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494 | Court cannot compel authorities to repeat a mistake. | Used to reject the request for similar illegal benefits. |
| Union of India v. Rakesh Kumar (2001) 4 SCC 309 | Hardship or discrimination does not justify perpetuating illegality. | Supports dismissal of the appeal. |
| State of Punjab v. Dr. Rajeev Sarwal (1999) 9 SCC 240 | An illegal action does not confer a corresponding right. | Cited in the same context of negative equality. |
| Yogesh Kumar v. Govt. of NCT, Delhi (2003) 3 SCC 548 | Illegal benefits to others do not oblige repetition. | Further authority for non-interference. |
| Union of India v. International Trading Co. (2003) 5 SCC 437 | Illegality cannot be the basis for asserting equality. | Relied upon in declining relief. |
| Anand Buttons Ltd. v. State of Haryana (2005) 9 SCC 164 | Negative equality impermissible. | Bolsters the Court’s reasoning. |
| State of Kerala v. K. Prasad (2007) 7 SCC 140 | Illegal or irregular orders do not create enforceable parity. | Quoted at length to underscore established position. |
| Chandigarh Administration v. Jagjit Singh (1995) 1 SCC 745 | High Court’s discretionary jurisdiction cannot be used to perpetuate illegality. | Adopted to reject the appellant’s reliance on alleged benefits to others. |
| Ekta Shakti Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337 | Judicial forums cannot be used to perpetuate illegalities. | Cited as an additional authority on the same principle. |
Court's Reasoning and Analysis
The Supreme Court examined the lease deed executed on 8-8-1990 and the brochure governing the appellant’s allotment. Both documents mandated that:
- The ground floor be used exclusively for parking;
- The basement be reserved for services/storage; and
- Any change of user required prior approval, failing which the lease could be cancelled.
The appellant first sought a change of user only after completion of construction and issuance of the completion certificate. The request was never approved. The policy permitting commercial use of the ground floor was introduced in 1995-1996 and applied to other plots under different conditions; it did not retroactively alter the appellant’s lease obligations.
The Court rejected the appellant’s plea of discrimination, holding that Article 14 prevents unequal treatment only within the bounds of law and cannot be invoked to compel repetition of an illegality. Any irregular concessions granted to neighbouring plot-holders could not, therefore, confer a legal right on the appellant. The Court relied on an extensive line of authorities establishing that “there is no equality in illegality” and that negative equality is not a constitutional guarantee.
Consequently, NOIDA’s enforcement actions were found to be fully supported by statutory provisions, lease conditions and building regulations.
Holding and Implications
APPEAL DISMISSED.
The Supreme Court affirmed the orders of the Allahabad High Court and upheld NOIDA’s notices and subsequent actions. The decision underscores that lessees cannot compel regularisation of unauthorised constructions by invoking Article 14 on the basis of concessions allegedly granted to others. No new legal precedent was created, but the judgment reinforces the settled doctrine that courts will not perpetuate illegality in the name of equality.
Dr. Arijit Pasayat, J.— 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 “noida”) and praying for a direction to the respondents not to interfere with the possession of the appellant of Plot No. P-1, Sector 18, noida.
3. The notice in question was issued for unauthorised 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 Area Development Act, 1976 (hereinafter referred to as “the Act”). 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, the appellant was required to remove the unauthorised 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.
4. 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 noida 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.
5. Challenging the order dated 27-10-2004, the appellant filed writ petition before the Allahabad High Court which was disposed of on 23-12-2004, with direction that the appellant's reply dated 8-12-2004 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 Plots Nos. P-4, P-5 and P-6. The High Court found that the 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.
6. 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 to the appellant for the purpose of permission granted to the lessor in respect of some other plots. Even in case of allotment of Plots Nos. P-2 and P-3 a departure was made. The writ petition was accordingly dismissed.
7. Stand of the appellant in the appeal was that discrimination is being made vis-à-vis some others. It is stated that change of policy on the question of regularisation was done and the benefit which has been extended to others should be allowed to the appellant.
8. 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.
9. Learned counsel for the respondents submitted that there is no question of any discrimination. In fact, 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 unauthorised 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 1995-1996 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 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 Plots Nos. P-5 and P-6. Further action has also been taken against allottees in respect of Plots 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.
10. 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 Plots Nos. P-5 and P-6 is concerned, they stand on different footing. The conditions in the brochure issued in the year 1995-1996 were different. Relevant clause of the aforesaid scheme reads as follows:
“… 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 (sic carried) 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.”
11. Immediately, after completion of the commercial building the 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 of user and change of user for which notices were issued. The relevant terms and conditions contained in the brochure in question read as follows:
“6. Approval of drawings
(a) The successful bidder will start the construction after obtaining due approval 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.
(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.
(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.
(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.
(c)(iv) The first floor of the building constructed on the allotted plot will be used for showroom-cum-office only.
(c)(v) The remaining upper floors constructed will be exclusively used for offices only and for no other purpose.
(c)(vi) The area on each floor includes area of balcony also. No projection on any side will be allowed beyond proposed plot line.”
12. Subsequently the lease deed dated 8-8-1990 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:
“X(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.
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.
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.”
13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In Sushanta Tagore v. Union of India (2005) 3 SCC 16 this Court rejected such a contention as sought to be advanced in the present case by observing:
“36. Only 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.”
14. This view also finds support from the judgments of this Court in Sneh Prabha v. State of U.P (1996) 7 SCC 426, AIR 1996 SC 540, Secy., Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35, State of Haryana v. Ram Kumar Mann (1997) 3 SCC 321 and Faridabad CT Scan Centre v. D.G Health Services (1997) 7 SCC 752.
15. In Financial Commr. (Revenue) v. Gulab Chand (2000) 10 SCC 656, 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.
16. In Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494, AIR 1999 SC 1347 and Union of India v. Rakesh Kumar (2001) 4 SCC 309, 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.
17. Any action/order contrary to law does not confer any right upon any person for similar treatment. (See State of Punjab v. Dr. Rajeev Sarwal (1999) 9 SCC 240; Yogesh Kumar v. Govt. of NCT, Delhi (2003) 3 SCC 548; Union of India v. International Trading Co. (2003) 5 SCC 437 and Anand Buttons Ltd. v. State of Haryana (2005) 9 SCC 164, 2005 AIR SCW 67.)
18. Recently in State of Kerala v. K. Prasad (2007) 7 SCC 140, JT (2007) 9 SC 140 it was inter alia held as follows:
“14. Dealing with such pleas at some length, this Court in Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745 has held that:
‘8. … 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 respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the 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 Secy., Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 and Ekta Shakti Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337.) 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.”
(emphasis in original)
19. 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.
TP (C) No. 846 of 2005
20. In view of our order in Civil Appeal No. 4732 of 2007 [arising out of SLP (C) No. 12531 of 2005], no further order is necessary to be passed in transfer petition.
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