High Court · 2025

3. On 09.08.2024, Sr. Manager, Building Division, NOIDA requested Sr. Manager, Work Circle-III, NOIDA to make available requisite police force to facilitate demolition of illegal constructions. It is against this communication the instant petition has been filed. The petitioners have alleged that they were not given any independent notice before passing the impugned order, therefore, the threat of demolition in pursuance of the impugned order is wholly illegal.

4. Ms. Pallavi Mishra, learned counsel for the petitioners submitted that entire allotment money stood paid to the builder i.e., respondent no.4. She submits that the petitioners being in occupation of the shop should have been given notice before any step is taken for demolition.

5. On the other hand, Shri Kaushalendra Nath Singh, learned counsel appearing for NOIDA submits that the petitioners are in illegal possession of the structure. In the notice dated 30th July, 2024, the Authority clearly indicated that the shops have been illegally constructed over front and side set-backs and that allottees have been illegally given possession without obtaining occupancy certificate from the Authority. The petitioners have not disputed the aforesaid facts and, therefore, their alleged possession is illegal. It is further submitted that, even, the agreement executed by respondent no.4 in favour of respondent no.5 envisaged execution of registered sub-lease deed before the allottee can enter into possession. It has to be a tripartite deed between the Authority, builder and the allottee. However, since the alleged occupation was illegal, therefore, the Authority has not consented to the execution of sub-lease. The petitioners have not denied these facts. Therefore, the petitioners have neither law nor equity in their favour.

6. On 17.12.2024, the following order was passed: "1. Learned counsel for the petitioners is granted time to clarify whether any occupancy/completion certificate was granted in respect of the shops, which are stated to be in tenancy of the petitioners.

2. As prayed, put up as fresh on 02.01.2025."

7. On matter being taken up today, Ms. Pallavi Mishra, learned counsel for the petitioners concedes that no occupancy certificate has been issued by the respondent-Development Authority in respect of the shop in question. She is also unable to put-forth any defense in respect of the specific case taken up by the respondent-Authority in its notice dated 30th July, 2024 that respondent no.4 had constructed the shops by covering front and side set-backs. Concededly, till date no sub-lease deed has been executed in favour of the petitioners and, therefore, even as per Clause 37(a) of the Agreement between respondent no.4 and respondent no.5, she could not have taken possession of the shop nor there arises any question of her delivering possession to the petitioners on basis of an alleged unregistered agreement. Clause 37(a) reads as under: "(a) That the Shop Allottee (s) will be entitled to possession of the said Shop only after all the amounts payable under this Agreement are paid and the Sub Lease Deed in respect of the said Shop is executed and duly registered with the Registrar/Sub- Registrar concerned."

8. In absence of occupation certificate by the Development Authority in respect of the premises in dispute, the induction of respondent no.5 or the petitioners herein in the shop in question was ex facie illegal. Recently, the Supreme Court in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others (Civil Appeal No.14604 of 2024 decided on 17.12.2024) has issued various directions, in larger public interest, to prevent such kind of violations by the builder and occupants. These directions inter alia include strict prohibition on occupation of building without an 'occupation certificate'. Even after issuance of 'completion certificate' if any violation is noticed, the Authorities have to take strict action in accordance with law.

9. Having regard to the admitted factual position that the petitioners are occupying the shop without any occupancy certificate and also without their being any sub- lease deed in their favour, we feel that granting any opportunity of hearing to them would have been an empty formality. We find no illegality in the action of the authority, in the facts and circumstances of the instant case. The petition is, therefore, dismissed.

10. It shall be open to the petitioners to take appropriate action against respondent no.5 for return of the amount paid or avail such other remedy as may be advised. (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) Order Date :- 22.1.2025 Ankit. ANKIT VISHWAKARMA High Court of Judicature at Allahabad

3. On 09.08.2024, Sr. Manager, Building Division, NOIDA requested Sr. Manager, Work Circle-III, NOIDA to make available requisite police force to facilitate demolition of illegal constructions. It is against this communication the instant petition has been filed. The petitioners have alleged that they were not given any independent notice before passing the impugned order, therefore, the threat of demolition in pursuance of the impugned order is wholly illegal.

4. Ms. Pallavi Mishra, learned counsel for the petitioners submitted that entire allotment money stood paid to the builder i.e., respondent no.4. She submits that the petitioners being in occupation of the shop should have been given notice before any step is taken for demolition.

5. On the other hand, Shri Kaushalendra Nath Singh, learned counsel appearing for NOIDA submits that the petitioners are in illegal possession of the structure. In the notice dated 30th July, 2024, the Authority clearly indicated that the shops have been illegally constructed over front and side set-backs and that allottees have been illegally given possession without obtaining occupancy certificate from the Authority. The petitioners have not disputed the aforesaid facts and, therefore, their alleged possession is illegal. It is further submitted that, even, the agreement executed by respondent no.4 in favour of respondent no.5 envisaged execution of registered sub-lease deed before the allottee can enter into possession. It has to be a tripartite deed between the Authority, builder and the allottee. However, since the alleged occupation was illegal, therefore, the Authority has not consented to the execution of sub-lease. The petitioners have not denied these facts. Therefore, the petitioners have neither law nor equity in their favour.

6. On 17.12.2024, the following order was passed: "1. Learned counsel for the petitioners is granted time to clarify whether any occupancy/completion certificate was granted in respect of the shops, which are stated to be in tenancy of the petitioners.

2. As prayed, put up as fresh on 02.01.2025."

7. On matter being taken up today, Ms. Pallavi Mishra, learned counsel for the petitioners concedes that no occupancy certificate has been issued by the respondent-Development Authority in respect of the shop in question. She is also unable to put-forth any defense in respect of the specific case taken up by the respondent-Authority in its notice dated 30th July, 2024 that respondent no.4 had constructed the shops by covering front and side set-backs. Concededly, till date no sub-lease deed has been executed in favour of the petitioners and, therefore, even as per Clause 37(a) of the Agreement between respondent no.4 and respondent no.5, she could not have taken possession of the shop nor there arises any question of her delivering possession to the petitioners on basis of an alleged unregistered agreement. Clause 37(a) reads as under: "(a) That the Shop Allottee (s) will be entitled to possession of the said Shop only after all the amounts payable under this Agreement are paid and the Sub Lease Deed in respect of the said Shop is executed and duly registered with the Registrar/Sub- Registrar concerned."

8. In absence of occupation certificate by the Development Authority in respect of the premises in dispute, the induction of respondent no.5 or the petitioners herein in the shop in question was ex facie illegal. Recently, the Supreme Court in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others (Civil Appeal No.14604 of 2024 decided on 17.12.2024) has issued various directions, in larger public interest, to prevent such kind of violations by the builder and occupants. These directions inter alia include strict prohibition on occupation of building without an 'occupation certificate'. Even after issuance of 'completion certificate' if any violation is noticed, the Authorities have to take strict action in accordance with law.

9. Having regard to the admitted factual position that the petitioners are occupying the shop without any occupancy certificate and also without their being any sub- lease deed in their favour, we feel that granting any opportunity of hearing to them would have been an empty formality. We find no illegality in the action of the authority, in the facts and circumstances of the instant case. The petition is, therefore, dismissed.

10. It shall be open to the petitioners to take appropriate action against respondent no.5 for return of the amount paid or avail such other remedy as may be advised. (Anish Kumar Gupta, J.) (Manoj Kumar Gupta, J.) Order Date :- 22.1.2025 Ankit. ANKIT VISHWAKARMA High Court of Judicature at Allahabad