The Development Authorities in Uttar Pradesh have no power to compound illegal constructions.
Compounding of offence meaning: Compounding of offence is a process whereby the person/entity committing default will file an application to the compounding authority accepting that it has committed an offence and so that same should be condoned.
Making illegal and unauthorized constructions in a building is an offence and the development authorities under the law have duty to not only demolish such unauthorized constructions but to also put the developer into trial as per the law to face imprisonment. However, the law provides for compounding of such offences. Generally it is believed that compounding means payment of some extra charges at penal rate for unauthorized construction. However, the law prescribes compounding of only the imprisonment portion and there is no relief to the unauthorized construction.
Let us take an example. A, a developer got sanction from the development authority for constructing a 10 floor building. However, he constructs 15 floors under impression that he will pay extra charges for the extra construction of 5 floors and get them compounded. This is not permissible as per law. The law has two simultaneous remedies; one, the extra construction of 5 floors must go down, secondly, the developer must be tried and punished through imprisonment. Here, there is relief by of compounding the offence of imprisonment and not towards the compounding of the extra 5 floors. The extra five floors will have to be demolished and the development authority has no power to condone same.
The Hon’ble Allahabad High Court in case, Writ – C No. – 19837 Of 2010 Dr. Santosh Dixit And Another v. State Of U.P. And Others has held thus:
“Violation of Plan not only attracts a criminal liability but there are civil consequences also. The Authority has been empowered and is also under an obligation to make the things right by removing such violation/deviation and restoring the Plan in its notified state. The basic object of Authority is development and not destruction or devastation or diminution of an otherwise development already made.
A deviation or violation of a Scheme or Plan cannot be made a means of profiteering by collecting huge amount from offenders/ violators and permitting them to continue to enjoy such deviation. If this stand is sustained, it would mean that the Statute is being read in a manner so as to confer an immunity upon the resourceful people to violate law and permit them to continue to enjoy such violation for all times to come by paying some amount to the authority. These violators basically come from elite class. They find it easier vis a vis their status to part away any amount of money so as to retain the information of plan. It adds to their status also. Most of the builders have made it a part of their business. Simultaneously the development authority also stand financially (officially and privately) benefited in allowing contravention of plan and violation of a statutory embargo without exercising its power of restoration by taking action of demolition etc. If such an interpretation is upheld, it would not only encourage corruption and element of extraneous consideration but would also create two classes; one those who are bound to suffer in their efforts of making any deviation from Master Plan since they lack financial resources to pay the so called compounding fees for continuing to enjoy the illegal and unlawful deviation; and, those who are rich, resourceful and capable to do so.
The dispute raised by petitioners can also be looked into from another angle where honest owners of land are using their construction only for the purposes the same are meant while petitioners are claiming certain benefit for their misdeed and for that purposes desire that G.D.A., should come to their rescue by permitting that. It is really interesting that in this case G.D.A., is acting to adhere to the purpose for which constructions were permitted and/or to adhere to the sanction plan by normally his experience is otherwise. Though, learned counsel for petitioners has argued at length by referring to Zonal Regulations, but we find nothing therein to show that user of premises in question, for other than residential purposes, would have been permissible under sanctioned master plan or Rules and Regulations framed under U.P. Act, 1973.
The principal issue raised in these writ petitions involves the extent to which user of a premise in an area within development authority can be flouted, deviated or altered either by occupant or owner, on its own or even by development authority concerned. Here we cannot ignore the very concept of constitution and establishment of development authorities under U.P. Act, 1973.”
The Hon’ble Court held that there is no provision under the U.P. Act, 1973 which entitles the Authority to go for profiteering on an illegal act of encroachment or unauthorized construction in the name of compounding. The compounding contemplated in Section 32 is in respect to offences punishable under the Act. It nowhere provides that once an offence is compounded, an act, which is in violation of Plan, shall also stand regularized or become valid. The effect of compounding is provided in Sub-section (2) of Section 32 that an offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect to the “offence” compounded. This is with regard to the criminal liability fastened upon the person for committing an offence under the Act, 1973. But the prohibition contained in the Act and statutory obligation upon Authorities to set right a person who has faulted/breached such provision by taking appropriate action, e.g. demolition of the building by exercising power under Section 27 has not been made un-operated when an offence is compounded. The proceeding prevented as a result of compounding an “offence” relates to offence and illegality/irregularity so prohibited/controlled under another provision. It may also be noticed that by U.P. Act No. 3 of 1997 (hereinafter referred to as “Act, 1997”), certain other offences have been provided vide Sections 26-D and 28-A. However, removal of any construction raised in contravention of Plan and removal of encroachment etc. are governed by a different procedure and steps which would remain uneffected by such compounding. In other words, the compounding under the Act, 1973 is to avoid the criminal liability and punishment on conviction but not to regularize a construction prohibited under the Act for which no relaxation is permissible except when the plan is amended in accordance with Section 13 of the Act.
The above law is applicable on all the development authorities in the state of Uttar Pradesh including development authorities of Agra, Aligarh, Allahabad, Lucknow. Ghaziabad, Gorakhpur, Kanpur, Bareilly, Meerut et Cetra.
Similarly the Industrial Development Authorities like New Okhla Industrial Development Authority, Greater Noida Industrial Development Authority, Yamuna Expressway Industrial Development Authority, Lucknow Industrial Development Authority, Gorakhpur Industrial Development Authority, UP State Industrial Development Authority et cetra are covered by the above law.