Holding

The appellant is not entitled to the benefit granted to others; the authority’s actions are lawful and Article 14 does not require the authority to repeat its earlier illegal act.

Summary

The New Okhla Industrial Development Authority (NOIDA) issued a notice under Section 10(1) of the U.P. Industrial Development Act, 1976 to Mis Vishal Properties alleging unauthorized construction and improper use of the ground floor of its plot. The appellant sought a change of user for the ground and upper floors, which NOIDA rejected. After a writ petition was dismissed by the Allahabad High Court, the appellant appealed to the Supreme Court, claiming discrimination because similar plots had been regularised under a later policy. The Court held that the authority’s actions were within the sanction of law and that earlier irregularities in other cases did not create a legal right for the appellant to obtain the same benefit. It further observed that Article 14 guarantees positive equality and does not compel the authority to repeat an illegal act. Consequently, the appeal was dismissed.

Issues considered

Whether the denial of change of user to the appellant violates Article 14 of the Constitution on the ground of discrimination.
Whether the actions of NOIDA under Section 10(1) of the U.P. Industrial Development Act, 1976 are lawful and sanctioned by law.
Whether a court can direct an authority to repeat an earlier illegal or irregular order.

Legislation cited

U.P. Industrial Development Act, 1976s. 10(1)

Subjects

Article 14EqualityDiscriminationIndustrial Development AuthorityChange of userUnauthorized constructionRegularisationStatutory noticeLease deedBye-laws

Judgment

A MIS VISHAL PROPERTIES PVT. LTD. 1- -
v.
STATE OF U.P. AND ORS.

OCTOBER 9, 2007
B
[DR. ARIJIT PASAYA T AND D.K. JAIN, JJ.]

UP. Industrial Development Act, 1976-S. 10(1)-Notice by ''f'
Development Authority-Alleging violation of bye-laws, directions,
c terms and conditions, and user ofbuilding in violation
'
ofrules-Change
of user sought-Denied by Authority-Writ Petition-Denying
allegations and claimingpermissiorz to change ofuser as was done in
case of lessees of other plots-Dismissed-In appeal, held: Act of
Authority cannot be said to be discriminatory-Irregularity by the
D Authority in case ofothers, does not confer legal right to the claimant ~(
for similar benefit-Actions ofthe Authority are not without sanction J;,.

ofLaw-Constitution of India, 1950-Article 14.
Constitution ofIndia, 1950-Article 14-Right to equality-Held:
· The provision provides for positive equality and not negative equality.
E
New Okhla Industrial Development Authority (NOIDA) issued
notice to the appellant u/s 10(1) ofU.P. Industrial Development Act,
1976, alleging violation of bye-Laws, directions, terms and
·~
conditions. It also pointed out the user of a floor in violation of rules. /.

F Appellant in his reply to the notice stated that the allegations were ·
incorrect. By another letter, appellant requested for change of user
of two floors. The request was rejected. Appellant filed Writ Petition
taking the stand that there was no contravention and that he should
be permitted to use these floors as was done in the case of lessees
G of certain other plots. Writ Petition was dismissed.
In appeal to this Court appellant contended that act ofNOIDA
was discriminatory inasmuch the benefit of change in policy regarding
regularization was not given to him as extended to others.

H 910
M/SVISHALPROPERTIESPVT.LTD. v. STATE 911

Dismissing the appeal, the Court A

HELD: 1. In view of the factual position, the actions of the
respondents are not without sanction of law. When the
representation was made by the appellant in 1993 there was no policy
in question. In fact, the change of policy came subsequently. The B
authorities may have acted in an irregular manner in case of some
others. That does not confer any legal right on the appellant to claim
y' a similar benefit. So far as the allotments of other plots are
concerned, they stand on different footing. The conditions in the
brochure issued in that regard were different. C
[Paras 9and18) [919-F; 914-F-G]
2. Article 14 of the Constitution is not meant to perpetuate an
illegality. It provides for positive equality and not negative equality.
Therefore; the Court is not bound to direct any Authority to repeat
the wrong action done by it earlier. [Para 12) [917-H; 918-A] D
\
'
Sushanta Tagore and Ors. v. Union of India and Ors., [2005] 3
SCC 16; Snehprabha v. State of UP. and Ors.; AIR (1996) SC 540;
Secretary, Jaipur Development Authority, Jaipur v. Dau/at Mal Jam
and Ors., [1997] 1SCC35; State ofHaryana and Ors. v. Ram Kumar
Mann, [1997] 3 SCC 321; Faridabad CT Scan Centre v. D.G. Health E
Services and Ors., [1997] 7 SCC 752; Finance Commissioner
(Revenue) v. Guiab Chandra and Anr., (2001) AIR SCW 4774;
Jalandhar Improvement Trust v. Sampuran Singh AIR (1999) SC
1347; Union o,flndia and Ors. v. Rakesh Kumar, AIR (2001) SC 1877;
State of Punjab and Ors. v. Dr. Rajeev Sarwal, [1999] 9 SCC 240; F
Yogesh Kumar and Ors. v. Government ofNCT Delhi and Ors., (2003]
3 SCC 548; Union o.fIndia and Anr. v. International Trading Company
andAnr., [2003) 5 SCC 437; Mis Anand Button Ltd v. State ofHaryana
and Ors., (2005) AIR SCW 67 and State ofKera/av. K. Prasad and
Anr., JT (2007) 9SC140, relied on. G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4732
of2007.

From the final Judgment and Order dated 19.5.2005 of the High
H
912 SUPREME COURT REPORTS [2007] 10 S.C.R.
,
__

A Court of Judicature at Allahabad in C.M.W.P. No. 40812 of2005.
WITH
T.P.(C) No. 846of2005.
Sanjay Jain, Om Prakash Mishra and Ghan Shyam Vasisht for the
B Appellant.
R.G. Padia, Harish N. Salve, Pradeep Misra, Sandeep Singh, T.
Mahipal, Reena Singh and Ravindra Kumar for the Respondents. 'y·

The Judgment of the Court was delivered by
c
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Be11ch
of the Allahabad High Court dismissing the writ petition filed by the
appellant questioning correctness of the orders dated 27.10.2004 and
D 31.3 .2005 passed by the officers of New Okhla Industrial Development
Authority (in short 'NOIDA') and praying for a direction to the
respondents not to interfere with the possession of the appellant with plot
no.P-1, Sector -18, NOIDA.
E 3. The notice in question was issued for unauthorized additional
construction and change of user ofland. The notice dated 21.4.2004 was
issued by NOIDA under Section 10(1) of the U.P. Industrial Development
Act, 1976 (hereinafter referred to as the 'Act'). It was indicated in the
notice that at the time of inspection on 21.4.2004 it was found that the
F appellant had violated the building bye-laws and directions and terms and
conditions in the lease deed which act prejudicially affected the proper
planning and amenities of the industrial development area which was
against interest of general public. Therefore, appellant was required to
remove the unauthorized construction within a period of 15 days and bring
G the construction in confonnity with the sanctioned plan so that interest of
the general public was not adversely affected. It was subsequently pointed
out that the appellant was not using the ground floor as per the rules and
conditions imposed. It was also mentioned that in the event the appellant
failed to do the needful, NOIDA was to get the illegal construction
H removed at the cost of the appellant. Since there was no compliance with
MIS VISHAL PROPERTIES PVT.LTD. v. STATE 913
[PASAYAT,J.]

the direction, another notice dated 23.8.2004 was sent to the appellant. A
He was again required to comply with the directions contained in the
earlier notice as the ground floor 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 B
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 C
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.
4. Challenging the order dated October 27, 2004, the appellant D
\
I
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. On 31.3 .2005, representation filed by the appellant was rejected.
The appellant took the stand that he should be permitted to use these E
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. F
5. Stand of the appellant that there was no contravention was also
turned down. The High Court also noted that there was no question
of any advantage being granted by the appellant for the purpose of
permission granted to the lessor in respect of some other plots. Even G
in case of allotment of plot No.P-2 and P-3 a departure was made.
The writ petition was accordingly dismissed.
6. Stand of the appellant in the appeal was that discrimination is
being made vis-a-vis some others. It is stated that change of policy
H
914 SUPREME COURT REPORTS [2007] 10 S.C.R.
-\/
A on the question of regularization was done and the benefit which has been
extended to others should be allowed to the appellant.
1-
7. It is stated that there is nothing sacrosanct about clause 10(a) upon
which the respondents have relied. The same can be modified by the Chief
Executive Officer, NOIDA.
B
8. Learned counsel for the respondents submitted that there is no
question of any discrimination. In fact, the NOIDA have already issued
notice to the persons to whom certain benefits as claimed by the appellant y
were purportedly given. There is no dispute that unauthorized additions
c have been made. It is submitted that construction was completed in 1990.
The completion certificate was issued on 19.4.1993. The representations
were made on 11.5.1993 and 5.7.1993. In 1995-96 a new scheme with
fresh policy was introduced which was made applicable to all adjoining
plots P-3, P-4, P-5 and P-6. Additional affidavit has been filed on behalf
D of the respondents 2, 3 and 4, inter alia, stating that on 29.6.2004, the
Chairman of the Industrial Committee vide communication to the Chief ~
-~"
Secretary, Industrial Development, Government of U.P ., and others
informed that irregularities have been committed by NOIDA during the
period from 20.5.2002 to 29.8.2003 in the construction of the plot nos.P-
E 5 and P-6. Further action has also been taken against allottees in respect
of plot nos.P-5 and P-6 for violating the norms/conditions of the allotment/
lease. It is also stated that the notice has been issued/is being issued to
find out the irregularities, if any, committed in respect of other plots.
--A
9. When the representation was made by the appellant in 1993 there /1

F was no policy in question. In fact, the change of policy came subsequently.
The authorities may have acted in an irregular manner in case of some
others. That does not confer any legal right on the appellant to claim a
similar benefit. So far as the allotment of plot nos.P-5 and P-6 are
concerned, they stand on different footing. The conditions in the brochure
G issued in the year 1995-96 were different. Relevant Clause of the aforesaid ~,..

scheme reads 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
H
~
I
MIS VISHAL PROPERTIES PVT. LTD. v. STATE 915
[PASAYAT,J.]
on all other floors the commercial activities institutional/residential A
use shall be allowed got the act to the condition that no public
nuisance is caused."
10. Immediately, after completioR of the commercial building
appellant submitted letters dated 1.5.1993 and 5.7.1993 for change B
in user of ground floor from parking place to shops. No approval was
granted for such change or user and change the user for which notices
y were issued. The relevant terms and conditions contained in the
brochure in question read as follows:
6. "Approval of drawings c
(a) The successful bidder will start the construction after obtaining
due approval of building plans by competent authority.
(b) The architectural control drawings for the plot shall be
exhibited at the time of auction. The successful bidder shall have D
to purchase the architectural control drawings from New Okhla
Industrial Development Authority on payment. Thereafter the
allottee shall get the plans prepared from the architects on the
basis of the architectural control drawings received from New
Okhla Industrial Development Authority and obtain sanction of E
the same from New Okhla Industrial Development Authority as
per Building Regulations and Directions and procedures laid
down by the Authority. The allottee will then carry on the
construction of the building strictly in accordance with the
sanctioned plans obtained from New Okhla Industrial F
Development Authority. On completion of the building, the
allottee shall obtain completion certificate from New Okhla
Industrial Development Authority as per the procedure laid down
by the Authority before occupying the building. The notes,
specifications and other stipulations mentioned in the architectural G
control drawings shall be strictly adhered to. No addition/
alteration shall be carried out by the allottee or the purchasers
of floor area after obtaining completion certificate, without getting
necessary permission and sanction from the Authority.
H
916 SUPREME COURT REPORTS. [2007] 10 S.C.R.
-~'t-\

A 6. (c)(i) The Ground floor (of the building constmcted 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
B
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.
y
6. (c)(iii) No barricade or boundary wall will be permitted on
C any side on the plot and there will be free access from one plot
to another on the ground floor.
6. (c)(iv) The first floor of the building constructed on the allotted
plot will be used for showroom cum-office only.
D 6. (c)(v) The remaining upper floor's constructed will be
exclusively used for offices only and for no other purpose.
6. (c)(vi) The area on each floor includes area of balcony also ..
No projection on any side will be allowed beyond proposed
plot line." (Emphasis Supplied)
E
11. Subsequently the lease deed dated 8th August, 1990 was
executed between the appellant and NOIDA. The terms and conditions
contained in the brochure were repeated in the lease deed. The relevant
clauses of the lease deed are quoted below: ;{
F
"X(A). The ground floor (of the building constructed on the
allotted office plot) will be exclusively used for parking and no
temporary or permanent construction of any sort would be
allowed in any circumstances.

G X(B). Construction of basement is optional and if constructed,
shall be as per architectural control drawing and building plans
approved by the lessor.
X(C). No barricade or boundary wall will be permitted on any
side of the plot and there will be free access from one plot to
H
MIS VISHAL PROPERTIES PVT. LTD. v. STATE 917
[PASAYAT,J.]
another on the ground floor. A

X(D). The first and above floors of the building constructed on
the allotted plot will be exclusively used for showroom-cum-office
only. The above floors of the building constructed on the allotted
plot will be exclusively used for office only and for no other B
purpose.
XI. - That the lessee shall obey and submit the rules, building
y
regulations and directions of the lessor, and proper municipal or
other authority now existing or hereinafter to exist, so far as the
same relate to the immovable property in the said area so far as C
they affect the health, safety and convenience of the other inhabitants
of the place.

D
'> ..
XIV. (A) The plot or building thereon shall not be used for a
purpose other than that specified in the lease deed and architectural
control drawings prescribed by the lessor. The architectural control
drawings will be supplied by the lessor on payment of the
prescribed fee by the allottee who shall carry out construction of E
the plot strictly in accordance with the same after the approval from
the lessor.

F

XXL If the lessee does not abide by the terms and conditions and
building rules or any other rules framed by the Authority, the lease
may be cancelled by the lessor and the lessee in such event will
not be entitled to claim any compensation in respect thereof." G
(Emphasis Supplied)

12. Even otherwise, 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 H
918 SUPREME COURT REPORTS (2007] 10 S.C.R.

A by it earlier. In Sushanta Tagore & Ors. v. Union of India & Ors., }
[2005] 3 SCC 16, this 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
B
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
c encroachments, if any, may be removed in accordance with law.
It is trite law that there is no equality in illegality."

13. This view also finds support from the judgments of the this Court
in Snehprabha v. State of UP. & Ors., AIR (1996) SC 540; Secretary,
D Jaipur Development Authority, Jaipur v. Daulat Mal Jam & Ors.,
(1997] 1 sec 35, State of Haryana & Ors. V. Ram Kumar Mann, .. '
[1997] 3 sec 321, and Faridabad CT Scan Centre V. D.G. Health
Services & Ors., [1997] 7 SCC 752.
14. In Finance Commissioner (Revenue) v. Guiab Chandra &
E Anr., (2001) AIR SCW 4774 this Court rejected the contention that as
other similarly situated persons had been retained in service, persons
senior to the petitioner could not have been discharged during the period
of probation observing that even if no action had been taken in similar
situation against similarly situated persons then too it did not confer any
F legal right upon the petitioner.
15. In Jalandhar Improvement Trust v. Sampuran Singh, AIR
(1999) SC 1347 and Union of India & Ors. v. Rakesh Kumar, AIR
(2001) SC 1877, this Court held that Courts cannot issue a direction that
G the same mistake be perpetuated on the ground of discrimination or
hardship.
16. Any action/order contrary to law does not confer any right upon
any person for similar treatment. (See: State ofPunjab & Ors. v. Dr.
Rajeev Sarwal, [1999] 9 sec 240; Yogesh Kumar & Ors. V.
H
MIS VISHAL PROPERTIES PVT.LTD. v. STATE 919
[PASAYAT,J.]

f Government ofNCT Delhi & Ors., [2003] 3 SCC 548; Union ofIndia A
& Anr. v. International Trading Company & Anr., [2003] 5 SCC 437
and Mis Anand Button Ltd v. State of Haryana & Ors., (2005) AIR
sew 67).
17. Recently in State of Kera/av. K. Prasad & Anr., JT (2007) 9 B
SC 140, it was inter alia held as follows:
"14. Dealing with such pleas at some length, this Court in
Chandigarh Administration & Anr. v. Jagjit Singh & 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 C
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. This position D
in law is well settled by a catena of decisions ofthis Court. [See:
Secretary, Jaipur Development Authority, Jaipur v. Dau/at Mal
Jain & Ors. and Exta Shakti Foundation v. Govt. ofNC. T of
Delhi. It would, thus, suffice to say that an order made in favour
of a persoQ in violation of the prescribed procedure cannot form E
a legal premise for any other person to claim parity with the said
illegal or irregular order. A judicial forum cannot be used to
perpetuate the illegalities."
\ 18. In view of the factual position, the actions of the respondents
are not without sanction oflaw. Appeal is sans merit, deserves dismissal, F
which we direct.
T.P. (C) No.846of2005
19. In view of our order in Civil Appeal No. 4732 of2007 (Arising
'( out of S.L.P. (C) No. 12531 of 2005), no further order is necessary to G
be passed in Transfer Petition.
K.K.T. Appeal dismissed and Transfer Petitions disposed of.