(1.) RAVI S. Dhavan, J. This writ petition is about constitutions made unauthorisedly and the scope of condoning the unauthorised structures by an exercise known as compounding. The issue plainly is on what is the concept, in urban planning, of condoning an unauthorised construction on the payment of a penalty and at what stage an unauthorised construction falls within the realm of an illegal act, the condonation of which the law does not permit under any circumstances.
(2.) THE facts on record in this case are: In Allahabad, the north sector of it, at the crossing of Beli Road and Batuk Krishna Banerjee Road, is a property which originally was owned by Lt. General D. W. Chakrovorti. It was purchased subsequently by the late Kedar Nath Tiwari, who became its owner. THE municipal number of the property is 2-A, Beli Road. Kedar Nath Tiwari died leaving the property in the hands, of his heirs, namely, Smt. Bimala Devi, his widow and Shri Nirmal Chandra Tiwari, his son. During the pendency of the present writ petition, Nirmal Chandra Tiwari, the petitioners No. 2, died. His heirs were permitted to be brought on record.
(3.) ULTIMATELY, the petitioners contend that they appeared before the Mukhya Nagar Abhiyanta (The Chief City Engineer) of the Allahabad Development Authority and made a request that all the constructions which have been made by deviating from the sanctioned plan be compounded. Of the accepted petition that the sanctioned plan was violated and deviated and the constructions were completed, the record bears this out blantantly. Thus, it is contended that a request for revised compounding was submitted for being considered but ultimately the Allahabad Development Authority did not accept the deviations from the original plan and the Administrator of the Nagar Mahapalika, Allahabad (City Corporation, Allahabad) passed an order on 29 March, 1979, that the illegal constructions should be demolished. It is contended that this order by which the revised plan showing the illegal constructions were not accepted was passed behind the back of the owner of the back of the owner of the property, i. e. late Kedar Nath Tiwari. Against this order by which demolition of the unauthorised construction had been ordered, an appeal was filed under Section 28 (1) of the Act, aforesaid. This was Appeal No. 8 of 1975; Kedar Nath Tiwari v. Secretary, Allahabad Development Authority Allahabad. The appeal lay before the Chairman, Allahabad Development Authority i. e. . the Commissioner, Allahabad Division Allahabad. On the appeal, the appellate authority on 5 May 1980, passed the following order: "appeal No. 8/1975 Kedar Nath v. Allahabad Development Authority ORDEr This is an appeal filed by Kedar Nath under Section 27 (2) of the Urban Planning and Development Act, 1973 against the order dated 30-6-1979 passed by the Chief Engineer Allahabad Development Authority for demolition of unauthorised construction of shops erected at 2a, Beliroad. I have heard the learned counsel for the appellant and perused the records of the case. The contention of the appellant is that the plan of the construction in dispute was previously sanctioned by Allahabad Development Authority but in actual construction some change has been done with regard to the site of the construction. It is stated that an application for compounding of the case had been filed but the same was wrongly rejected. It is alleged that in front of the said construction, other buildings have also been constructed which are in commercial use, such as Vijay Bank a laundry shop and sweetmeat shop. It is argued on behalf of the Allahabad Development Authority that previously sanctioned plan was for the extension of the existing residential buildings but the construction of shops which have been held to be unauthorised are not in the nature of the extension of the residential house but it a separate house away from the residential house and is being used for commercial purposes. The contention of the appellant, that the construction is meant for the use as lodge for the students is not correct as some of the shops have already been leased out and are in actual use as shops. Section 16 of the Urban Planning and Development Act prohibits any development against the proposal of the Master Plan. Although it is admitted that in front of the disputed construction, commercial activity like bank, laundry and sweetmeat shops are continuing in other buildings but all these are old buildings in which non conformity in use could continue unless specifically prohibited by individual. It is also evident from the perusal of the plan of the unauthorised construction for the required set back for commercial purposes has not been left and the shops have been constructed on the road without leaving any vacant area. It is also clear that the appellant did not stop the construction work despite notice given to him under Section 26 of the Act and completed construction work on first floor also. Such constructions are not fit for compounding as they are not only against the proposal of Master plan but in fact would give impetus to such unauthorised constructions by other persons. In view of the facts discussed above, I find no force in appeal which is hereby dismissed. 5-5-1980 Sd/- J. N. Pradhan Commissioner, Allahabad Division, Chairman, Allahabad Development Authority Allahabad