In The Hon’ble High Court For The State Of Uttar Pradesh

Sitting At Lucknow
Criminal Misc. Case No.9085 of 2023
(Under Section 482 Cr.P.C.)

Vijay Jalan …………

Petitioner
Vs.
State of U.P. and another …....Opposite Parties

COUNTER AFFIDAVIT ON BEHALF OF OPPOSITE

PARTY NO. 2

I, ……………………aged …….years son of

…………………….presently posted
as……………………………..Qualification-……………,
Religion- Hindu, Occupation- ……………………., the
deponent do hereby solemnly affirm and state on oath as
under:-

1. That the deponent is presently posted as

…………………………………., Lucknow Development
Authority, Lucknow and is authorized to file the counter
affidavit on behalf of opposite party no. 2. He has gone
through the averments made in the petition as well relevant
records and as such is well conversant with the facts of the
case and those deposed hereinafter.
2. That the instant petition under Section 482 CrPC has
been filed for quashing of the summoning order dated
25/05/2015 passed in Criminal Case no.4107 of 2015
initiated against the petitioner under Section 26(2) read with
Section 16 of the U.P. Urban Planning and Development Act,
1973 (hereinafter to be referred as ‘Act of 1973’ for the sake
of brevity) as well as the proceedings of the said criminal
case and all consequential orders passed therein, including
the warrants issued against the petitioner by the Court of
Learned Chief Judicial Magistrate, Lucknow.

3. That before submitting paragraph-wise reply to the

averments made in the petition, it would be appropriate to
brief certain relevant facts for just and proper disposal of the
present petition.

4. That undisputedly, the property in question i.e. Property

no.1/8, Mahanagar Extension, Lucknow is within the
territorial jurisdiction of the Lucknow Development
Authority in terms of notifications issued under Section 3 of
the Act of 1973 and thus, the construction or the usage of
land is governed by the provisions contained under the Act of
1973 and in case of violation of the same, appropriate
proceedings are initiated against the concerned person as well
as the construction.

5. That undisputedly the property in question is being used

for commercial purposes, however the same is being used in
violation of the land usage which is residential in nature.
6. That the said property in question was inspected on
02/03/2015 by the Assistant Engineer, Zone - 2 as well as the
Junior Engineer, Zone – 2 and it was found that though the
land usage of the property in question has been earmarked as
residential but despite the said fact, it is being used for
commercial purposes/garment shop without getting any
approval or sanction from the competent authority.

7. That for ready reference Section 26 and Section 16 of

the Act of 1973 are quoted hereinafter:-
“ 16. Uses of land and buildings in contravention of plans.-
After the coming into operation of any of the plans in a zone no
person shall Use or permit to be used any land or building in that
zone otherwise that in Conformity with such plan :
Provided that it shall be lawful to continue to use, upon such terms
and Conditions as may be prescribed by bye-laws made in that behalf,
any land Or building for the purposes and to the extent for and to
which it is being used upon the date on which such plan comes into
force.

26. Penalties.- (1) Any person who whether at his own instance or at
the instance of any other person or any body (including a department
of Government) undertakes or carries out development of any land, in
contravention of the Master Plan or Zonal Development Plan or
without the permission, approval or sanction referred to in Section 14
or in contravention of any condition subject to which such permission
approval or sanction has been granted shall be punishable with fine
which may extend to ¹[Fifty thousand] rupees, and in the case of a
continuing offence, with further fine which may extend to ¹[Two
thousand five hundred] rupees for every day during which such
offence continues after conviction for the first commission of the
offence.
(2) Any person who uses any land or building in contravention of the
provisions of Section 16 or in contravention of any terms and
conditions prescribed by regulations under the proviso to that section
shall be punishable with fine which may extend to ² [Twenty-five
thousand rupees and in the case of a continuing offence, with further
fine which may extend to ²[One thousand, two hundred and fifty
rupees] for every day during which such offence continues after
conviction for the first commission of the offence. (3) Any person who
obstructs the entry of a person authorised under Section 25 to enter
into or upon any land or building or molests such person after such
entry shall be punishable with imprisonment for a term which may
extend to six months, or with fine which may extend to one thousand
rupees, or with both.”
So far as Bazar Marg is concerned, the same is defined
under Clause 8.4.8 of the Lucknow Master Plan, 2031. The
property in question is situate at Kursi Road (Raidas Mandir
Railway Crossing to Allegiance Sector G till Petrol Pump).
The said street though finds mention on the Bazar Marg in
the list of Bazar Marg but the fact remains that the property
in question was created under the scheme of Mahanagar
Housing Scheme in which this House was carved out for
residential purposes. Thus, it is clear that though this plot is
falling in the Bazar Marg but it was carved out on the scheme
developed by the Lucknow Improvement Trust and was
earmarked as residential plot and is still a residential plot.

8. That in order to claim any benefit of Bazar Marg in

terms of Clause 8.4.8, the conditions are to be satisfied
wherein, a caveat has also been provided that Commercial
Activities over Bazar Marg would be permissible only in
accordance with the Building Bye-laws.

9. That the Building Bye-laws at Clause No. 8.4.8

especially provides that the commercial activities over Bazar
Marg would not be permissible where the colony has been
developed by the Awas Vikas Parishad, LDA or
Improvement Trust or where the layout plan has been
sanctioned by the competent authority. In view of the
aforesaid facts that the plot in question has been carved out in
the scheme of the Lucknow Improvement Trust, thus the
provision of Bazar Marg would not be applicable upon it and
thus, the petitioner are illegally using the land in question as
commercial and accordingly, appropriate proceedings under
Section 26 read with Section 16 have been initiated against
the petitioner and accordingly, the notices have rightly been
issued by the trial court and as the petitioner is violating the
provisions of Section 16 read with Section 26 and is liable to
be prosecuted for the same.

10. That in view of the aforesaid facts and circumstances,

there is no illegality or infirmity in the orders passed by the
Learned Trial Court and accordingly, present petition filed
under Section 482 CrPC is liable to be dismissed with heavy
cost.

PARAGRAPH-WISE REPLY

11. That the averment made in paragraph 1 of the writ

petition needs no reply.

12. That the averments made in paragraph 2 of the writ

petition are absolutely wrong and misconceived hence
denied. In reply the averments made in the preceding
paragraphs of this Counter Affidavit are reiterated. It is
submitted that the impugned order dated 25/05/2015 has been
passed in accordance with law after appreciating the
contentions raised in the complaint filed by the petitioner.
Even otherwise, the petitioner has failed to disclose as to
what prejudice has been caused to it in issuance of the
summons in as much as, he has to submit his reply before the
trial court and has to substantiate that he has infact not
violated any provisions of law and is conducting the
commercial activities as per the approval granted by the
Lucknow Development Authority.

It is further submitted that there arises no question of

any premeditated mindset and manner wherein, the
prosecution has been initiated against the petitioner. It is only
because of the illegal usage of the property in question by the
petitioner himself, that the complaint has been initiated
against the petitioner in accordance with law.

13. That the averments made in paragraph 3 of the writ

petition are absolutely wrong and misconceived hence
denied. In reply the averments made in the preceding
paragraphs of this Counter Affidavit are reiterated.

14. That in reply to the averments made in paragraph 4 of

the writ petition it is submitted that the case has been setup
by the Respondent no.2 before the Learned Trial Court. The
reasons have been clearly demonstrated as to under what
circumstances the prosecution has been initiated against the
petitioner. Moreover, the property in question is to be used
only for the residential purposes and not for commercial
purposes and the petitioner in an illegal manner is running a
commercial complex with the name of ‘Geeta Vastralay’
which is not permissible in the eyes of law and accordingly,
appropriate prosecution has been initiated against the
petitioner.

15. That the averments made in paragraph 5 of the writ

petition in the manner in which it has been stated are
absolutely wrong and misconceived hence denied. In reply
the averments made in the preceding paragraphs of this
counter affidavit are reiterated.

16. That the averments made in paragraphs 6 and 7 of the

writ petition in the manner in which they have been stated are
absolutely wrong and misconceived hence denied. In reply it
is submitted that the petitioner is required to submit his
explanation to the show cause notice given by the Prescribed
Authority. Instead of doing so, he is making lame excuses
against the Prescribed Authority which in-fact have no
bearing in the present set of facts and circumstances.

17. That the averments made in paragraphs 8 and 9 of the

writ petition are absolutely wrong and misconceived hence
denied. In reply the averments made in the preceding
paragraphs of this counter affidavit are reiterated. It is further
submitted that the property in question is absolutely
earmarked for residential purposes whereas, the petitioner is
carrying out the commercial activities which is in gross
violation of the provisions contained under Section 16 read
with Section 26 of the Act of 1973.

18. That the averments made in paragraph 10 of the writ

petition in the manner in which it has been stated are
absolutely wrong and misconceived hence denied. In reply it
is submitted that the petitioner has been directed to make
payment for land use conversion charges for which he
himself made an application which is evident from a bare
perusal of letters dated 29/01/2016 and 09/11/2016. It is also
absolutely clear that instead of getting the amount deposited
for the purposes of usage of land for commercial purpose, the
petitioner continued with the commercial activities which is
in gross violation of the provisions contained under Section
16 read with Section 26 of the Act of 1973.

19. That the averments made in paragraphs 11, 12 and 13

of the writ petition in the manner in which they have been
stated are absolutely wrong and misconceived hence denied.
In reply the averments made in the preceding paragraphs of
this counter affidavit are reiterated. It remains an undisputed
position that despite filing of the writ petition no.34620
(M/B) of 2018, no interim order has been granted in favour
of the petitioner but he is still continuing with the
commercial activities illegally and unauthorizedly.

20. That the averments made in paragraph 14 of the writ

petition in the manner in which they have been stated are
wrong and misconceived hence denied. In reply the
averments made in the preceding paragraphs of this counter
affidavit are reiterated.

21. That the averments made in paragraphs 15, 16 and 17

of the writ petition in the manner in which they have been
stated are wrong and misconceived hence denied. In reply the
averments made in the preceding paragraphs of this counter
affidavit are reiterated. It is further submitted that so far
Zonal Development Plan is concerned, it is not concerned
with the present set of facts and circumstances. So far as the
conduct of the petitioner is concerned, it is absolutely in
violation of the Act of 1973 and as such the prosecution has
rightly been initiated against him and therefore, the present
petition under Section 482 CrPC filed by the petitioner is an
abuse of process of court and accordingly the same is liable
to be rejected with heavy costs.

22. That the averments made in paragraph 18 of the writ

petition are wrong and misconceived hence denied. In reply
the averments made in the preceding paragraphs of this
counter affidavit are reiterated.

23. That the averments made in paragraphs 19 and 20 of the

writ petition are wrong and misconceived hence denied. In
reply the averments made in the preceding paragraphs of this
counter affidavit are reiterated.

24. That the averments made in paragraph 21 of the writ

petition are wrong and misconceived hence denied. In reply
the averments made in the preceding paragraphs of this
counter affidavit are reiterated.

The grounds taken in the instant petition are not tenable

for quashing of proceedings of the Trial Court and
accordingly the present petition filed under Section 482 CrPC
being not maintainable is liable to be dismissed with heavy
cost.

Lucknow
Dated:- Deponent
Verification
 I, the deponent above named hereby verify that the
averments contained in Paragraph …………………………..
of the affidavit are true to my personal knowledge, those
contained in paragraphs …………………….. are believed to
be true on the basis of records and those contained in
Paragraph ………………………………..are believed to be
true on the basis of legal advice. No part of it is false and
nothing material has been concealed. So help me God.
Signed and verified this ……… day of November, 2023.

Lucknow

Dated: - Deponent
I, Mohan Lal clerk of Sri Ratnesh Chandra, Advocate High
Court, Lucknow and resident of 40, Kaiserbagh, Lucknow
declare that I am satisfied on the grounds stated below that
the person verifying this affidavit and alleging himself to be
………………………… is that person.

Grounds: He has shown me the Identity Card issued

by…………………………………...
Mohan Lal
Reg. No. 43/1993
40, Kaiserbagh, Lucknow
Clerk to Sri Ratnesh Chandra, Advocate
Solemnly affirmed before me on . at
a.m. /p.m. by, deponent, who is identified by Sri Mohan Lal,
Clerk to Sri Ratnesh Chandra, Advocate, High Court,
Lucknow. I have satisfied myself by examining the deponent
that he has understood the contents of this affidavit which
have been read over and explained to him, by me.
 In The Hon’ble High Court For The State Of Uttar Pradesh
Sitting At Lucknow
Criminal Misc. Case No.9085 of 2023
(Under Section 482 Cr.P.C.)

Vijay Jalan …………

Petitioner
Vs.
State of U.P. and another …....Opposite Parties
INDEX
Serial No. Particulars of Document Page No.

1. Application for dismissal of the

Petition

2. Counter Affidavit on behalf of

Opposite Party no.2

3. Copy of Id Proof

Lucknow
Dated: - Ratnesh Chandra

Advocate
Counsel for Opposite Party no.2
 In The Hon’ble High Court For The State Of Uttar Pradesh
Sitting At Lucknow
Criminal Misc. Case No.9085 of 2023
(Under Section 482 Cr.P.C.)

Vijay Jalan …………

Petitioner
Vs.
State of U.P. and another …....Opposite Parties

Application for dismissal of Petition under Section 482

CrPC

That for the facts and reasons stated in the

accompanying affidavit it is most respectfully prayed that
this Hon’ble Court may be pleased to dismiss the Petition in
the interest of justice.
Such other order as may be deem just and proper in the
circumstances of the case may also be passed in the interest
of justice.

Lucknow

Dated: - Ratnesh Chandra

Advocate
Counsel for Opposite Party no. 2