The Allahabad High Court has held that an offence under Section 32 of the Uttar Pradesh Urban Planning and Development Act, 1973 can be compounded only once, and that where a promoter repeats the same deviation from a sanctioned layout after an earlier compounding, the development authority has no power to compound it again.

Section 32 of the Act, 1973 permits any offence punishable under the Act to be compounded by the Vice-Chairman, before or after proceedings are instituted, on payment of a composition fee. Regulation 2.2 of the Compounding Bye-laws, 2009 requires an undertaking from the offender that the offence will not be carried further, and requires uncompoundable construction to be removed.

The bench of Justice Saral Srivastava and Justice Sudhanshu Chauhan held,

“So, Section 32 of the Act, 1973 read with Regulation 2.20 of Compounding Bye-laws, 2009 permits the compounding of offence in respect to same or identical offence only once and not beyond. Therefore, after the offence committed by a person/Promoter/Builder under Section 32 of the Act, 1973 has been compounded under Compounding Bye-laws, 2009, subsequent identical offence is not compoundable nor the Authorities can permit the subsequent compounding.”

“It is trite law that the compounding only waives or satisfies criminal liability/fines. It cannot be used as a tool to regularize architectural changes that runs counter to the layout plan.”

The Ghaziabad Development Authority sanctioned a group housing layout at 95, Katori Mill, Mohan Nagar, Sahibabad, Ghaziabad on 29.05.2006 for 34 towers carrying 904 dwelling units. Officers of the Hindon Air Base objected to the promoter's title over several khasras and the map was cancelled on 03.07.2010. By that date 720 units had been built.

A first compounding map sanctioned on 15.11.2011 regularised the 720 constructed units and allowed 374 fresh ones, taking the sanctioned figure to 1094. The promoter deviated again, and a second compounding allowed on 13.01.2015 took Towers 33, 34 and 35 from eight floors to ten. A third compounding on 18.12.2024 regularised the ninth and tenth floors of Towers 16, 17, 18 and 19 and two further towers, 27 and 28, amounting to 112 units.

Eleven apartment owners challenged the third compounding, pleading that the promoter had altered the layout again and again without the written consent of apartment owners required by Section 5(3)(a) of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, that the Authority was hand in glove with him, and that land of the Indian Air Force had been counted in working out the permissible floor area ratio. Their petition was heard with a 2015 writ petition filed by the residents' welfare association of the society.

The Authority and the promoter argued that nothing in law forbids multiple compounding, that Regulations 13 and 15 of the Ghaziabad Development Authority Area Building Regulations, 2002 allow additions and alterations as often as needed, and that everything compounded fell within the available FAR, under which 1603 units were permissible as against the 1096 finally sanctioned. They also objected that individual flat owners could not maintain a writ petition while a residents' welfare association was in existence.

The Court rejected the objection on maintainability, holding that the petitioners' individual right under Section 5(3)(a) of the Act, 2010 had been violated and they were aggrieved persons entitled to invoke Article 226.

On Regulation 13, the Court held that written permission of the Chief Executive Officer must be taken before any external addition or alteration is carried out, and that amended plans must be submitted for the purpose.

“the Promoter cannot execute the structural modification first and seek approval retroactively, he is legally required to secure formal permission in advance.”

Neither the court record nor the Authority's original record showed that the promoter had applied for or obtained any such permission. Regulation 15, which lets an owner rectify violations within fifteen days of being told of them, covers minor violations alone, and reading it as the promoter urged would render Regulation 13 otiose.

The Court summoned the Authority's original record and found that neither the order cancelling the 2006 layout nor the promoter's application for the first compounding was traceable. The promoter had never taken any proceeding against the cancellation, so it survived.

“This is a peculiar case where the Development Authority has approved the compounding map where no original sanctioned map/layout is in existence inasmuch as the original sanction layout/map dated 29.05.2006 was cancelled on 03.07.2010, and the cancellation order was neither set aside nor recalled by the competent authority.”

Noting that the promoter had given the undertaking required by Regulation 2.2 and had then committed the same kind of violation over again, the Court held that the repeat offences were expressly barred from compounding.

“the Promoter cannot use the tool of compounding to evade the regulations and execute major structural changes viz adding unapproved floors to an existing block; constructing additional towers that were not part of originally sanctioned layout plan, shrinking mandated open spaces, green zones or common amenities promised to the apartment owners”

The Court marked out the limit of the rule. Since the Explanation to Section 4(5) of the Act, 2010 treats completion of an independent block as completion, a promoter in a group housing scheme may build tower by tower and have deviations in each block compounded.

“Therefore, in such case compounding of deviation in each block within permissible limit without making any external addition or alteration in sanctioned layout is permissible, and we, in such sense, can call that multiple compounding is permissible in Group Housing Scheme.”

On Regulation 3.2.10 of the Compounding Bye-laws, which deals with construction exceeding the permissible height by more than 10% without the number of floors being changed, the Court rejected the argument that it governs plotted development alone and not group housing, observing that stricter regulation is called for where large numbers of families live in multi-storeyed buildings.

“Therefore, we hold that the construction of two additional floors in Tower nos.16, 17, 18, 19 was not compoundable.”

The Court further summoned the record of a 1990 writ petition filed by Tata Oil Mills Company Ltd. and found that eight plots, Khasra nos. 1034, 1035, 1051, 1054, 1058, 1060, 1061 and 1063, had been acquired under the Defence of India Act, 1962 for the Hindon Airfield, possession taken on 02.12.1963, and that the company's challenge was dismissed on 01.03.2012 for delay and laches. The sale deeds in favour of the promoter were therefore void, and the 4560 square metres comprised in those plots ought to have been left out while calculating FAR.

“The law is settled that Development Authority cannot legally sanction or compound a layout or building plan for a housing scheme or plots when Promoter or applicant does not hold a valid title or clear ownership rights.”

Setting aside the third compounding dated 18.12.2024, the Court directed the Authority to demolish the ninth and tenth floors of Towers 16, 17, 18 and 19 and the whole of Towers 27 and 28 within two months, with the expenses recoverable from the promoter as arrears of land revenue and with security from the district administration and the police.

It held the first and second compounding equally illegal, but declined to disturb the apartments built under them as third party interests had been created and those maps had not been assailed.

Costs of Rs. 25 lakhs were imposed on the promoter, payable to the residents' welfare association, and the Authority was directed to pay Rs. 50,000 to each petitioner. The State Government was directed to institute a disciplinary inquiry against the Vice Chairman who sanctioned the third compounding. Both writ petitions were allowed.