Selective Approach can't be adopted while sealing premises in absence of Zonal Plan: Allahabad HC
Updated: Feb 9, 2022
In a recent order passed by Allahabad High Court, it was observed that a Development Authority cannot restrict haphazard development in the area of its jurisdiction without first preparing a Zonal Plan of such area/zone. It was further noted that, in the absence of the Zonal Plan, the whole exercise of restricting the development of a particular area in a particular manner becomes selective, as in such cases, the development authority may adopt "pick and choose method" to restrict the development of a particular area at the whims & fancies of its officers.
The petitioners had raised a temporary construction over their residential premises and they were running a "Cloud Kitchen/Take-Away Food Service" in the name of 'Yame Food Court'. For running the said establishment, all necessary permissions have been taken from the competent authorities. However, a Show - Cause Notice dated 31.01.2021 was served to them in a purely mechanical and perverse manner on the alleged ground that they had changed the nature of use of land/property-in-question from "residential" to commercial" and there is no parking space. Subsequently, on 23.02.2021, the premises of the Petitioners were sealed in the most arbitrary and illegal manner.
It was argued on behalf of the petitioners that they are not running any food joint or restaurant at the site in question, and are simply running a 'cloud kitchen service. Moreover, the constructions existing on the spot are temporary in nature which do not change the nature of the land in question in any manner. There was, thus, no requirement of submission of the map seeking permission from the Authority to raise the said constructions. Even otherwise, the Zonal plan for the area in question has not been framed and it, therefore, cannot be said that the area in question is purely residential and that the petitioners are prohibited from carrying out commercial activity. There cannot be an identification of the usage of an area being residential, commercial, or mixed (both residential & commercial) without preparation of the Zonal plan.
Though it was argued on behalf of the Development Authority that the area in question was recognized as a 'residential area' in the Master Plan 2021, which was prepared in 2005, however, the Court observed that even after repeated directions issued by the Hon’ble High Court no zonal plans were prepared.
Further, the Court observed that,
“Master plan is a conceptual layout to guide future (proposed) development to be carried out by the development authority as it serves as a basic pattern of framework within which the zonal development plans of various zones may be prepared; actual execution of the development plan is with the preparation of the Zonal plan, which must contain a site-plan and use-plan for the development of the Zone and shows the approximate locations and extents of land use.”
Reliance was placed on Rajendra Prasad Arora and others Vs. State of U.P. and others, 2020(1) ADJ 169 and Smt. Rekha Rani v. State of U.P. & others, (2014) 103 ALR 577, wherein division benches of this High Court has reiterated the importance of zonal plans.
Thus, it was observed by the Hon'ble Court that:
The identification of the area in question being purely residential in nature on the basis of the Master plan prepared under Section 8 of the U.P. Urban Planning And Development Act, 1973 may not be possible without preparation of the Zonal plan which is a usage plan.
As a result of the observations made above, the Hon'ble Court was pleased to pass an interim order directing the respondent authority to remove the seal of the premises-in-question forthwith and further restricting respondent authority from interfering in the activities of the petitioners.
(The petition was filed and argued by S&D Legal Associates in association with its Partners and Associates based in Prayagraj.)
Citation: 2021(148) ALR 304 : 2021(153) R.D. 324