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2016 DIGILAW 558 (UTT)

Mohammad Usman v. State of Uttarakhand

2016-09-07

V.K.BIST

body2016
JUDGMENT : V.K. Bist, J. It is the case of the petitioner that in the year 1990, petitioner purchased 94.87 sq. mtr. land of Khasra No. 496 of Dharampur, Dehradun (property no. 183/1) by way of registered sale-deed dated 20.11.1990 from Dr. Indu Chhabra w/o K.N. Chhabra resident of 93 Dharampur, Nehru Colony, Dehradun. The aforesaid property was numbered as property no. 183/1 in the municipal records. Out of this 94.87 sq. mtr. land, 13.19 sq. mtr was covered area and 27.31 sq. mtrs was existing plinth area and 53.77 sq. mtr. was open area as per the map. Prior to the sale of the aforesaid property to the petitioner, the erstwhile owner of the property in question Smt. Indu Chhabra took the permission from the Nagar Palika Parishad, Dehradun, vide G.R. No. 824/1977-78 dated 12.09.1979, under the provisions of the Municipalities Act. When the petitioner purchased the aforesaid property, it had covered area, plinth area and the open land as indicated above and, as such, there was no dispute with regard to the covered area and plinth. In the open land, there existed a temporary construction covered by tin sheds and the same were being used to run the small shops. These tin sheds have been constructed more than 30 years back. The present controversy arose in the year 2010, when these tin sheds were corroded by the lapse of long 30-35 years and the petitioner removed those tin sheds and laid slab over those tin sheds and, instead of wooden doors, the shutters were placed. The respondent authority, the Mussoorie Dehradun Development Authority, under the hands of its Secretary, issued a notice to the petitioner under Section 28(1) of the U.P. Urban Planning and Development Act, 1973. On 29.06.2010, petitioner replied the said notice and requested it to be withdrawn mainly on the ground that the property in question is within the Nehru Colony and situated in the area of U.P. Awas Evam Vikas Parishad. According to the petitioner, the respondent authorities, under the hands of its Secretary, without considering the facts of the case and law, passed order dated 20/21.07.2011 for sealing the property under Section 28-A of the Act. According to the petitioner, the respondent authorities, under the hands of its Secretary, without considering the facts of the case and law, passed order dated 20/21.07.2011 for sealing the property under Section 28-A of the Act. Feeling aggrieved by the aforesaid order, the petitioner filed an appeal under Section 28A (4) of the Act to the Chairman/ Commissioner, Garhwal Mandal, Pauri and explained that the reasons were shown in the reply to the notice dated 18.02.2010. The learned Appellate Authority, during the pendency of the appeal, stayed the sealing order dated 20/21.07.2011 vide its order dated 22.07.2011. Thereafter, the Chairman/ Commissioner, M.D.D.A., vide judgment and order dated 22.10.2013, dismissed the appeal. Petitioner, under the provisions of the Act, challenged both the orders by filing a Revision Petition before the respondent no. 1 i.e. Secretary, Housing and Urban Development, Dehradun. The learned Revisional Authority rejected the revision petition vide judgment and order dated 23.08.2016. Hence, this writ petition. 2. It is the contention of the learned counsel for the petitioner that, in fact, the tin sheds were constructed 30 years back and the only thing which was done by the petitioner is that he laid slab over those tin sheds and installed the shutters in the shops. For this purpose, notice was given to him and the order dated 20/21.07.2011 has been passed for sealing the property in dispute under Section 28-A of the Act. Learned counsel for the petitioner contended that this could not have been done in respect of old structure. 3. On the other hand, Mr. Rahul Consul, learned counsel appearing for respondent no.4 would submit that, in fact, the petitioner violated the provisions of the Act and, therefore, the notice was given to the petitioner. He submitted that the petitioner could not furnish the sanctioned map of the property in question and, therefore, the impugned order has been passed for sealing the property in question. 4. During the course of argument, learned counsel for the parties would submit that the building in question is situated in such a land where there is no map sanctioned. The only thing is that the petitioner did not seek permission from the M.D.D.A. and no map was got sanctioned for it. 4. During the course of argument, learned counsel for the parties would submit that the building in question is situated in such a land where there is no map sanctioned. The only thing is that the petitioner did not seek permission from the M.D.D.A. and no map was got sanctioned for it. In such circumstances, learned counsel for the petitioner requested that his prayer for compounding may be considered and, as per law, whatever amount is fixed by the M.D.D.A., the petitioner is ready to pay the same. 5. At this, learned counsel for the respondent no. 4 would submit that in case order is passed, the application moved by the petitioner for compounding will certainly be considered by the Secretary, M.D.D.A. and the claim raised by the petitioner will be considered in accordance with law and in the light of the prevailing bye-laws. 6. This suggestion made by the parties appears to be genuine. Consequently, the writ petition is disposed of by permitting the petitioner to submit a fresh compounding application along with the map as well as with the required documents before the Secretary, M.D.D.A. within a period of three weeks from today. In case such application is moved within the stipulated period, the Secretary, M.D.D.A. shall take a decision on the same within a period of one month from the date of filing of such application. In case application moved by the petitioner is rejected by the Secretary, M.D.D.A., it will be open for the petitioner to challenge the same before this Court along with the orders, which are impugned in this writ petition. 7. I also record the submission made by the learned counsel for the respondent no. 4 that in case application is moved by the petitioner within the stipulated period, the order impugned will be kept in abeyance till application moved by the petitioner is decided. 8. Let a copy of this judgment be issued within 24 hours.