IN THE HONBLE SUPREME COURT OF INDIA

VISHAL PROPERTIES PVT. LTD.

APPELLANT
V.

STATE OF U.P. AND ORS.

RESPONDENT

On Submission to The Honble Supreme Court of India

Memorandum on behalf of Respondent
State of U.P. & Ors.

Submitted by
SACHIN
Sem. III
Roll no. 114

TABLE OF CONTENTS
List of Abbreviations

Index of Authorities

Synopsis of Facts

Issues Raised

Summary of Arguments

Pleadings and Arguments advanced

Prayer

14

LIST OF ABBREVIATIONS

AIR

All India Reporter

2

Art.

Article

HC

High Court

S.

Section

SC

Supreme Court

JT

Judgement Today

SCC

Supreme Court Cases

P.

Page No.

Ed.

Edition

INDEX OF AUTHORITIES

Table of Cases

John Vallamattom v. Union of India, (2003) 6 SCC 611

Sushanta Tagore and Ors. v. Union of India and Ors, AIR 2005 SC 1975
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Sneh prabha v. State of U.P. and Anrs., AIR 1996 SC 540

Secretary, Jaipur Development Authority, Jaipur v. Daulat Mai Jain and Ors, (1997)1SCC35
State of Haryana and Ors. v. Ram Kumar Mann, (1997) 3 SCC 321
State of Kerala v. K. Prasad and Anr., JT 2007 (9) SC 140
State of Uttaranchal v. Alok Sharma, (2009) 7 SCC 647

Statutes

1. U.P. Industrial Development Act, 1976,

2. Constitution of India

SYNOPSIS OF FACTS

The appellant owns a house in NOIDA. A notice was sent to him for unauthorized 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 Development Act, 1976. 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. Therefore, appellant was required to remove the unauthorized construction within a period of 15 days and
bring the construction in conformity with the sanctioned plan.
It was subsequently pointed out that the appellant was not using the ground floor as per the rules and conditions
imposed. 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
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and service floor were not being used as per the conditions of the lease deed. 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 the 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.
Challenging the order dated October 27, 2004, the appellant filed writ petition before the Allahabad High Court
which was disposed of on December 23, 2004, with direction that the appellant's reply dated December 8, 2004
should be decided if not already done by a speaking order. The appellant took the stand that he should be
permitted to use these floors as was done in the cases of lessees of plot nos. P-4 and P-5 and P-6. The High Court
found that 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.
.

ISSUE RAISED

1. Whether the appeal lies and the terms and conditions stated in the U.P.
Industrial Development Act, 1976 can be applied mandatorily.
2. Whether Art. 14 of the Indian Constitution is used in positive sense only.

SUMMARY OF ARGUMENTS

1. The appeal does not lie owing to the construction done by the appellant in contravention to the
terms and conditions of the U.P. Industrial Development Act, 1976
According to the U.P. Industrial Development Act, 1976 owner of plot in NOIDA is not allowed to do any
construction contravening the terms and conditions prescribed in the act. Appellant contravened the terms
and conditions by doing illegal constructions and using the plot in illegal manner. Hence, the appeal
should be dismissed.
2. Only positive sense can be derived from Right to equality as stated in article 14 of the Indian
Constitution
The appellant pleads that the notice should have been sent to the owners of P-1 and P-2 plots as well
as per the right to equality. But right to equality is used in positive sense only. Facts reveal that the
owners of P-1 and P-2 did the constructions according to the terms and conditions. Article 14 cannot
be used in negative sense.

Pleadings and Arguments Advanced

1. The appeal does not lie owing to the construction done by the appellant in contravention to the
terms and conditions of the U.P. Industrial Development Act, 1976
The appellant participated in a public auction held by NOIDA on 22nd March, 1990 and by a letter dated 9th
April, 1990, the appellant was intimated that Plot No. P-l, Sector, 18, NOIDA had been allotted to it on leasehold
basis for a period of 90 years. In the said letter it was specifically stated that the allotment of the said plot was as
per the terms and conditions contained in the brochure enclosed with the application form. The relevant terms and
conditions contained in the brochure which are the subject matter of this appeal are reproduced below-:
6. (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.
6. (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.
6. (c)(iv) The first floor of the building constructed on the allotted plot will be used for showroom-cum-offlce
only.
6. (c)(v) The remaining upper floor's constructed will be exclusively used for offices only and for no other
purpose.
The appellant completed the construction of the commercial building on 9th October, 1992 and a completion
certificate was also issued by NOIDA on 19th April, 1993. Soon thereafter the appellant sent letters dated 11th
May 1993, and 5th July, 1993 to NOIDA regarding certain problems on commercial complexes of Sector, 18 and
in particular requested for changing the usage of ground floor as shopping/showrooms in place of parking. By the
communication dated 9th September, 1993 the appellant was clearly intimated by NOIDA that the change in use
of ground floor was a policy matter and could be examined in future at the time of revision of building bye-laws.
Therefore, it is humbly submitted that no permission was granted to the petitioner to change the user of the
ground floor.
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Immediately after completion of the commercial building, the appellant submitted letters dated 11th May, 1993
and 5th July, 1993 for change in user of ground floor from parking place to shops. NOIDA never gave its
approval for such change in user and it appears that the appellant on its own changed the use as a result of which
notices dated 21st April, 2004 and 3rd August, 2004 were issued to the appellant under Section 10(1) of the Act.
The appellant submitted a reply dated 23rd September, 2004 merely mentioning therein that after the issue of the
completion certificate, no additional construction had been made by the appellant and, therefore, the allegation
contained in the notice were incorrect.
A notice dated 21st April, 2004 was issued by NOIDA under Section 10(1) of The Uttar Pradesh Industrial Area
Development Act, 1976. The appellant was intimated that on art inspection having been made on 21st April, 2004
it was found that the appellant, had violated the building bye-laws and directions and the terms and conditions set
out in the lease deed which act was prejudicially affecting the proper planning and the amenities of the industrial
development area. This was against the interests of the general public and, therefore, the petitioner was required
to remove the unauthorized constructions within a period of 15 days and bring the constructions in conformity
with the sanctioned plan so that the proper planning of the industrial development area and the interest of the
general public was not adversely affected. It was pointed out to the appellant that the ground floor was not being
used as per the rules and the conditions imposed by NOIDA. It was also specifically mentioned that in the event
the appellant failed to do so, NOIDA would be constrained to get the illegal constructions removed at the cost of
the appellant. The appellant did not comply with the directions issued in the aforesaid notice and, therefore,
another notice dated 23 rd August, 2004 was sent to the appellant. The appellant was reminded to comply with
the directions contained in the notice since the ground floor and the services floor were not being used as per the
conditions of the lease deed.
NOIDA was constituted under Section 3 of the Act. Under Section 8 of the Act, power has been given to NOIDA
to issue directions in respect of erection of building. It has been provided that for the purposes of proper planning
and development of the industrial development area, the Authority may issue such directions, as it may consider
necessary regarding the architectural features of the elevation or frontage of any building, the alignment of
buildings on any site, the restrictions and conditions in regard to open spaces to be maintained in an around
buildings and height and character of buildings, regulation of building, and maintenance of amenities and
restriction of use of any site for the purpose other than that for which it had been allocated.
Hence, the appeal does not lie as the construction done by the appellant contravenes the terms and conditions of
the U.P. Industrial Development Act, 1976.

1. Only positive sense can be derived from Right to equality as stated in article 14 of the Indian
Constitution
The appellant pleads that the notice should have been sent to owners of P-1, P-2 as well according to Art. 14 of
the Indian Constitution. But Article 14 is used in positive sense. Equality does not mean negative equality.
Article 14 outlaws discrimination in a general way and guarantees equality before law to all persons. According
to Art. 14 of the Indian Constitution, The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
Two concepts are involved in Art. 14, viz., equality before law and equal protection of laws. The first is a
negative concept which ensures that there is no special privilege in favour of any one, that all are equally subject
to the ordinary law of the land and that no person, whatever be his rank or condition, is above the law.
The second concept, equal protection of laws, is positive in content. Equal Protection of the laws does not
postulate equal treatment of all persons without distinction. What it postulates is the application of the same laws

alike and without discrimination to all persons similarly situated. It denotes equality of treatment in equal
circumstances.1
All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed. 2 But equality
cannot be applied when it arises out of illegality.
The terms and conditions set out in the brochure issued in the year 1995-96 for allotment of Plot Nos. P-2 and P-3
are entirely different. Clause 1 (f) of the aforesaid scheme relating to Plot Nos. P-2 and P-3 is 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 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 cause."
From the aforesaid it is clear that in respect of Plot Nos.P-2 and P-3 the basement and the ground floor could be
used for shops/showrooms subject to certain conditions and, therefore, the petitioner is not correct in drawing any
analogy from Plot Nos. P-2 and P-3.
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 and Ors. v. Union of India and Ors. 3 the Supreme Court rejected such a contention as sought to be
advanced in the present case by observing:"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.

1 M.P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa (5 th Ed, 2009), 1219 p.
2 John Vallamattom v. Union of India, (2003) 6 SCC 611
3 AIR2005SC1975
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This view also finds support from the judgments of the Hon'ble Court in Sneh prabha v. State of U.P. and Anrs.4,
Secretary, Jaipur Development Authority, Jaipur v. Daulat Mai Jain and Ors.5 and State of Haryana and Ors. v.
Ram Kumar Mann6.
Recently in State of Kerala v. K. Prasad and Anr.7, it was inter alia held as follows:
Dealing with such pleas at some length, this Court in Chandigarh Administration and Anr. v. Jagjit Singh and
Anr. has held that 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 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.
Article 14 provides positive and not negative equality. Hence any action or order contrary to law does not confer
any right upon any person for similar treatment. Thus unauthorized additional construction and change of user of
land cannot be claimed on the basis that the same had been granted in other cases in contravention of law.8

4 AIR1996SC540
5 (1997)1SCC35
6 (1997)3SCC321
7 JT 2007 (9) SC 140
8 State of Uttaranchal v. Alok Sharma, (2009) 7 SCC 647
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PRAYER FOR RELIEF

In light of the facts stated, arguments advanced and authorities cited, the Respondent, humbly prays the
Honorable Court, to adjudge and declare that:
I.

The appeal be dismissed in the lights of mandatory of terms and conditions of the U.P. Industrial
Development Act, 1976.
The Court may also be pleased to pass any other order, which the Court may deem fit in light of justice equity
and good conscience.
All of which is most humbly submitted.

Sachin
Counsel for Respondent

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