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Uttarakhand High Court · body

2015 DIGILAW 191 (UTT)

ANUJA KAUSHIK v. STATE OF UTTARAKHAND

2015-03-31

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is preferred assailing the order dated 27.03.2015, passed by Secretary, Mussoorie Dehradun Development Authority, Dehradun, whereby permission earlier granted to the petitioner to raise construction on his personal plot vide Map No. R- 1748/14-15 was cancelled. 2. Perusal of the impugned order dated 27.03.2015 reveals that permission was cancelled, since few Government employees raised objection against using of the road in Government colony by owners of the private plots situated on other side of the road. 3. Section 15 of the U.P. Urban Planning and Development Act, 1973 reads as under: 15. Application for permission- (1) Every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in writing to the [Vice-Chairman] in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by [bye-laws]. (2) Every application under sub-section (1) shall be accompanied by such particulars as may be prescribed by rules. (2) Every application under sub-section (1) shall be accompanied by such particulars as may be prescribed by rules. [2(A) The authority shall be entitled to levy development fees, mutation, charges, stacking fees and water fees in such manner and at such rates as may be prescribed: Provided that the amount of stacking fees levied in respect of an area which is not being developed or has not been developed, by the Authority, shall be transferred to the local authority within whose local limits such area is situated.] (3) On the receipt of an application for permission under sub-section (1), the [Vice-Chairman] after making such inquiry as it considers necessary in relation to any matter specified in clause (d) of sub-section (2) of Section 9 or in relation to any other matter, shall by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission: Provided that before making an order refusing such permission, the applicant shall be given a reasonable opportunity to show cause why the permission should not be refused: Provided further that the [Vice-Chairman] may before passing any order on such application give an opportunity to the applicant to make any correction therein or to supply any further particulars of documents or to make good any deficiency in the requisite fee with a view to bringing it in conformity with the relevant rules or regulations. [Provided also that before granting permission, referred to in Section 14 the Vice- Chairman may get the fees and the charges levied under sub-section (2-A) deposited.] (4) Where permission is refused, the grounds of such refusal shall be recorded in writing and communicated to the applicant. (5) Any person aggrieved by an order under sub-section (4) may appeal to the [Chairman] against that order within thirty days from the communication thereof and may after giving an opportunity of hearing to the appellant and, if necessary, also to be representative of the [Vice-Chairman] either dismiss the appeal or direct the [Vice-Chairman] to grant the permission applied for with such modifications, or subject to such conditions, if any, as may be specified. (6) The [Vice-Chairman] shall keep in such form as may be prescribed by regulations a register of applications for permission under this section. (6) The [Vice-Chairman] shall keep in such form as may be prescribed by regulations a register of applications for permission under this section. (7) The said register shall contain such particulars, including information as to the manner in which applications for permission have been dealt with as may be prescribed by regulations, and shall be available for inspection by any member of the public at all reasonable hours on payment of such fee not exceeding rupees five as may be prescribed by regulations. (8) Where permission is refused under this section, the applicant or any person claiming through him shall not be entitled to get refund of the fee paid on the application for permission but the [Vice-Chairman] may, on an application for refund being made within three months of the communication of the grounds of the refusal under sub-section (4) direct refund of such portion of the fee as it may deem proper in the circumstances of the case. [(9) If at any time after the permission has been granted under sub-section (3), the Vice- Chairman is satisfied that such permission was granted in consequence of any material mis-representation made or any fraudulent statement or information furnished, he may cancel such permission, for reasons to be recorded in writing and any work done thereunder shall be deems to have been done without such permission: Provided that a permission shall not be cancelled without affording to the person or body concerned a reasonable opportunity of being heard.] 4. Perusal of sub-section 9 of Section 15 of the Act demonstrates that permission granted earlier can be cancelled by the Vice- Chairman of the Development Authority after recording his satisfaction that permission was obtained by misrepresenting the facts or by making fraudulent statements or by furnishing wrong facts. 5. Proviso to sub-Section 9 of Section 15 of the Act further demonstrates that before passing the order of cancellation of the permission, opportunity of being heard shall be given to the applicant in whose favour sanction was granted. 6. Undisputedly, on the one side of the road officers/Government colony is situated while on the other side of the road, private plots and residences are situated. 7. The only case of Mr. Subhash Upadhyaya, learned Chief Standing Counsel appearing for respondent no. 1 and 2 and Mr. Rahul Consul, learned counsel for the respondent no. 6. Undisputedly, on the one side of the road officers/Government colony is situated while on the other side of the road, private plots and residences are situated. 7. The only case of Mr. Subhash Upadhyaya, learned Chief Standing Counsel appearing for respondent no. 1 and 2 and Mr. Rahul Consul, learned counsel for the respondent no. 3, is that that private owners of the plots and residences situated on the other side of the Government colony should not be permitted to use the road made for the use of Government servants. 8. On being asked, learned counsel for the respondents could not demonstrate nor the order impugned or the show cause notice contends that there is another road available on the other side of the petitioner’s plot. Since, road in question is the only road available to the petitioner, therefore, keeping in mind the “principle of easement of necessity” too, petitioner cannot be denied to use the road in question. Moreover, in the map which was sanctioned earlier road in question has been shown. This is not the case of the respondents that petitioner has placed wrong or incorrect facts before the M.D.D.A. while getting the map sanctioned. Respondents are not suggesting that petitioner has played fraud on the Authority while getting the map sanctioned. 9. In the humble opinion of this Court, map sanctioned ordinarily shall not be cancelled unless and until Vice Chairman of the Authority satisfy himself that applicant has misled the Authority by placing wrong/incorrect facts or by playing fraud. Ingredients of sub-Section (9) of Section 15 of the Act are totally missing in the present case. 10. Therefore, the order impugned does not sustain in the eyes of law. Consequently, petition is allowed. Impugned order is hereby quashed. 11. CLMA No. 3391 of 2015 also stands disposed of accordingly.