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2016 DIGILAW 835 (UTT)

Sarita Rani v. State of Uttarakhand

2016-11-17

V.K.BIST

body2016
JUDGMENT : V.K. Bist, J. Petitioner has approached this Court seeking the following reliefs: “(i) Issue a writ order or direction to respondent nos. 2 to 4 to remove/demolish the illegal construction of the respondent no. 5 in pursuance to the order dated 01.08.2016 (contained in Annexure-12) passed by respondent no. 2 in Case No. 51/07 year 2016 U/s 10 of R.B.O. Act. (ii) Issue a writ order or direction to respondent nos. 2 to 4 to make strict compliance of the order dated 01.08.2016.” 2. Briefly put, the case of the petitioner is as follows: The petitioner is a permanent resident of Mohalla Shaktinagar, Maheshpura, New Sabzi Mandi, Kashipur, Tehsil Kashipur, District Udham Singh Nagar and in the west of his house, one plot measuring 24x48=1152 sq. ft. situated at Khasra No. 438 was purchased by Dr. Roop Narayan Bhardwaj from Sri Nand Kishore. Dr. Roop Narayan sold the said property in favour of Sri Dharmesh Kumar on 19.09.1996 with the aforesaid measurement. On 04.08.1999, Sri Dharmesh Kumar sold the aforesaid property alongwith 10 feet path total 24x58=1392 sq. ft. to the respondent no. 5 and one Sri Sarvjeet Arora. It is alleged that, thereafter, the respondent no. 5 started unauthorized construction over the said property. The petitioner filed a suit before the Court of Civil Judge, Kashipur, District- Udham Singh Nagar for the cancellation of sale deed dated 04.08.1999 (in respect of path) and for demolition of the construction on the path encroached by the respondent no. 5 and Sri Sarvjeet Arora. The petitioner, after knowing that the construction raised by the respondent no. 5 on the path is without permission of the Controlling Authority prescribed under the Uttar Pradesh (Regulation of Building Operations) Act, 1958, made a complaint before the S.D.M., Kashipur. On 02.11.2010, a notice under Section 10(2) of the R.B.O. Act was issued to the respondent no. 5 by respondent no. 2. The respondent No. 5 did not respond to the aforesaid notice. Thereafter, a case under Section 10 of the R.B.O. Act was instituted before the respondent no. 2, which is titled as Case No. 51/30 year 2014, in which the report of Lekhpal dated 10.03.2014 was filed. Due to non-appearance of the respondent no. 5 in the aforesaid proceedings, on 11.11.2014, the matter proceeded ex-parte against him. Thereafter, a case under Section 10 of the R.B.O. Act was instituted before the respondent no. 2, which is titled as Case No. 51/30 year 2014, in which the report of Lekhpal dated 10.03.2014 was filed. Due to non-appearance of the respondent no. 5 in the aforesaid proceedings, on 11.11.2014, the matter proceeded ex-parte against him. On the same day, Prapatra Ga was also issued for demolition of the aforementioned unauthorized construction, which was received by the respondent no. 5 on 18.12.2014. Thereafter, on 25.08.2015, petitioner filed an application before the respondent no. 2 to enforce order dated 11.11.2014. On the application of the petitioner, the respondent no. 2, on 03.09.2015, again directed the respondent nos. 3 & 4 to enforce the order dated 11.11.2014, by demolishing the unauthorized construction of the respondent no. 5 on or before 09.09.2015. Thereafter, petitioner filed Writ Petition (M/S) No. 2510 of 2015 before this Court for a direction to the respondents to demolish the illegal construction of the respondent no. 5 in pursuance of the order dated 11.11.2014. The said writ petition is pending consideration before this Court. On 08.03.2016, the respondent no. 2 confirmed the order dated 11.11.2014 and directed the respondent no. 4 to comply with the same. The respondent no. 4, vide order dated 29.04.2016, cancelled the map of respondent no. 5, by observing that the same is sanctioned by way of fraud. The information to this effect was also given to the respondent no. 5 on 30.04.2016 alongwith a show-cause notice. The respondent no. 5 did not respond to the notice issued to him. Thereafter, the respondent no. 2 issued a fresh notice to the respondent no. 5 on 20.06.2016. On 01.08.2016, the respondent no. 2 issued the demolition order of unauthorized construction of respondent no. 5 followed by Prapatra ‘Ga’. It is alleged that though the order for demolition of the illegal construction of the respondent no. 5 was passed on 01.08.2016, but the same has not been complied with so far. Hence, this writ petition. 3. Learned counsel appearing for the petitioner submitted that in spite of the fact that the map sanctioned in favour of the respondent no. 5 has been cancelled by the competent authority under Section 7-A of the R.B.O. Act, the illegal construction done by the respondent no. 5 has not been removed so far. 4. Hence, this writ petition. 3. Learned counsel appearing for the petitioner submitted that in spite of the fact that the map sanctioned in favour of the respondent no. 5 has been cancelled by the competent authority under Section 7-A of the R.B.O. Act, the illegal construction done by the respondent no. 5 has not been removed so far. 4. In my view, the petitioner has nothing to do with the demolition of the illegal construction made by respondent no. 5. The only thing, which he could do, that he has done by informing the competent Authority. If his private right is infringed, he has civil remedy. Moreover, this Court is not sitting in Public Interest Jurisdiction. 5. In such circumstances, no interference is called for. Consequently, the writ petition is dismissed. However, it is always open to the petitioner to remind to the concerned Authority about the same and the Authority concerned is supposed to act fairly in the matter. 6. There will be no order as to cost.