In the case of DB Kauser v State of UP The State Government has remanded the matter to the Allahabad Development Authority with a direction to dispose of the compounding map submitted by the revisionist in 2005, after providing an opportunity for hearing to all the parties and in light of Rules, Bye-laws, and Government Orders relating to compounding, in response to a writ petition filed against the order. In addition, the petitioner requested that the Development Authority order the demolition of the unauthorised structures that respondent 5 allegedly erected over the petitioner’s plot, quashing all proceedings related to the respondent’s application for compounding of unauthorised constructions.
whether the order of remand’s provision allowing for consideration of the compounding of constructions made by the respondent is legal
Conclusion of court
Justice Kshitij Shailendra of the Allahabad High Court’s Single Bench ruled that the contested order is unjustifiable and goes against well-documented factual and legal positions. According to the Court, there are no provisions for compounding constructions in the Act of 1973. However, Section 32 of the Act of 1973 has a provision for the composition of offences. Section 26 of the Act of 1973 lists the offences related to unauthorised or illegal constructions. Additionally, there is a mechanism for fine realisation under Section 31 of the Act of 1973No provision in the Act allows for the compounding of unauthorised buildings, hence the only offences that can be are those that are punishable by prosecution. However, it is evident that even in the Byelaws of 2009, the word “constructions” was not used; instead, the word “offence” was used. This indicates that even the Byelaws speak of the composition of “offences” and not the compounding of “constructions.” The Court concluded that the Act of 1973 does not contain any provisions that would allow the Authority to make money off of an unauthorised building project or an illegal incursion under the pretence of compounding. The compounding that Section 32 refers to is unquestionably in relation to offences that are punished by the Act. It does not state anywhere that if an offence is compounded conduct that violates the Plan will also stand or be accepted. The purpose of the Act of 1973’s compounding is to avoid criminal culpability and the associated penalties, not to legalise a building that is prohibited by the Act and for which no exception is permitted until the design is modified in accordance with Section 13 of the Act.
On the remand order, the Court stated that the Development Authority would take up the compounding of constructions issue and would deal with it in one way or another and that this decision would lead to additional rounds of litigation by either side because it was subordinate to the State Government under the 1973 Scheme. The Supreme Court and this Court have often ruled that judicial and quasi-judicial authorities should avoid needless remand; as a result, wherever remand is shown to be factually, legally, or both unlawful and illegal, it should be interfered with.