HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 39
Case :- WRIT – C No. – 21271 of 2021
Petitioner :- Mohammad Adnan And 9 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Puran Nath Shukla,Ila Deol
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
Hon’ble Manoj Kumar Gupta,J.
Hon’ble Deepak Verma,J.
The instant petition has been placed before us today in pursuance of order of Hon’ble Senior Judge dated 28.8.2021, passed on the urgency application of the petitioners.
We have heard Ms. Ila Deol, Advocate, assisted by Sri P.N. Shukla, Advocate, on behalf of the petitioners, Sri J.N. Maurya, learned Chief Standing Counsel ? I, along with Sri Virendra Kumar Pal, learned Standing Counsel and Sri Kaushalendra Nath Singh on behalf of respondent nos. 1 and 2 respectively.
We have also heard Sri Nitesh Anand, alongwith Sri Sunit Kumar, Advocate, on behalf of Residents Welfare Association of Gardenia Gateway, Noida, which claims to have filed caveat application in the matter.
The petitioners have assailed the validity of a communication dated 14.10.2020 between General Manager (Planning), Noida and Senior Manager (Work Circle ? VI), Noida. The said internal communication between two authorities of Noida mentions that on receipt of complaints from the residents of Gardenia Gateway, Noida, various notices were issued to the developer (respondent no. 3) from time to time.
It speaks about the developer having not complied with the requisite formalities to obtain occupancy certificate albeit possession having been handed over to the allottees. It further mentions that in the parking area, there is water seepage and malba has been dumped, resulting in difficulty to the residents in parking their vehicles. The developer has not constructed boundary wall in front of commercial complex.
It had erected kiosks in setback area. It is also alleged that more than sanctioned number of shops has been constructed. The Chief Executive Officer is stated to have passed an order on 23.9.2020 for demolition. The communication requires the Planning Department to be informed so that its officials remain present along with sanctioned plan at the time of demolition.
A residential cum commercial complex by name of Gardenia Gateway, Noida has been developed by respondent no. 3. The petitioners claim to be allottees of different shops in the commercial complex in Gardenia Gateway, Noida.
They claim that no notice or opportunity of hearing was given to them and the authority is intending to demolish their constructions. It is alleged that the application filed by developer for compounding of constructions beyond the permissible FAR is pending. The petitioners as well as the developer are ready to deposit composition charges.
Sri Kaushalendra Nath Singh, learned counsel for respondent no. 2, points out that after passing of the demolition order, when the developer filed composition application, it was required to comply with certain formalities by issuing notice dated 2.3.2021. However, the same has not been complied with so far and consequently, it is not possible to take notice of the composition application.
He further points out that only part of the constructions which have been raised in excess of approved constructions, are compoundable, the remaining have to be demolished. He submitted that the authority shall issue notice to the developer specifying the portion which is compoundable and that which is not compoundable, within three days from today and take the proceedings to their logical conclusion. He further states that the Noida Authority in future will ensure that developers/builders do not handover possession of premises in respect of which no occupancy certificate has been issued by the authority.
Learned counsel appearing on behalf of the Residents Welfare Association submitted that the shopping complex in which the shops of the petitioners are situate, is built over area earmarked as common area for construction of swimming pool, community centre and green area. He vehemently contended that such areas cannot be permitted to be converted into commercial space.
He has placed for our perusal a settlement deed between Sri Surendra Deol, Director of respondent no. 3 and the petitioners, whereunder the petitioners have agreed to allotment of flats in lieu of the shops which were being demolished.
In terms thereof, the shopkeepers will be given alternative premises in Gardenia Gateway, Noida. An option has also been given to the shopkeepers to apply for restoration of possession of shops, if same is regularized by Noida Authority in future. The physical possession of the flats allotted to the shopkeepers (the petitioners) in lieu of their shops, is promised to be handed over on or before 30th November, 2021.
It is urged that in view of the fact that the petitioners have already agreed to take alternative accommodation in lieu of shops which are illegally constructed, there is no equity in their favour, nor any right to be heard as claimed by them.
Ms. Ila Deol, learned counsel for the petitioners, after obtaining instructions from the petitioners, did not dispute that the petitioners had entered into agreement dated 27.8.2021 with the builder/developer. She however submitted that fifteen days time be granted to the petitioners to remove their goods and vacate the shops.
Sri Kaushalendra Nath Singh, learned counsel for respondent no. 2, has no objection to the said request. He states that some part of the constructions had already been demolished day before yesterday. He undertakes that no further demolition will take place for fifteen days.
Accordingly and with consent of learned counsel for the parties, the petition is disposed of by providing that the petitioners will vacate the shops in dispute, on or before expiry of fifteen days from today.
Further demolition of the shops in pursuance of the demolition orders, shall remain stayed for a period of fifteen days. In case the petitioners do not vacate the shops in question within fifteen days, respondent no. 2 shall be free to proceed in accordance with law.
Source: indiankanoon
