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2019 DIGILAW 225 (UTT)

Balvinder Singh v. State of Uttarakhand

2019-03-19

SHARAD KUMAR SHARMA

body2019
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The petitioner has filed the present Writ Petition for the following reliefs : (i) Issue writ, order or direction in the nature of certiorari for quashing the impugned order dated 17.07.208/08.08.2018 (Annexure no.9) passed by the Additional Chief Administrator in revision no.629/463/2017 whereby the revision of the petitioner was rejected. (ii) Issue writ, order or direction in the nature of certiorari for quashing the impugned order dated 21.03.2017 (Annexure no.6) passed by the respondent no.2 in appeal no. 10 of 2016-17 whereby the appeal of the petitioner was rejected. (iii) Issue writ, order or direction in the nature of certiorari for quashing the impugned order dated 23.11.2016 (Annexure no.5) and order dated 05.04.2017 (Annexure no.7) passed by the respondent no. 3 in the case no. C-0009/S-10 of 2016. (iv) Pass any other/further suitable order which this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) Award the cost of writ petition to the petitioner.” 2. The impugned order which has been put to challenge by the petitioner, i.e. Annexure No. 9 to the writ petition, was passed in a Revision, being Revision No. 463/2017, Balvinder and another Vs. Commissioner and others. The challenge is also given to the final order dated 08.08.2018, as passed by the Additional Chief Administrator in the Revision, being Revision No. 463/2017. By the order dated 17.07.2018, the Revision preferred by the petitioner being aggrieved against the order dated 23rd November, 2016 and 5th April, 2017, was dismissed, with a direction to the Development Authority to immediately take action and comply the order. 3. The challenge in the writ petition is also given to the order dated 21st March, 2017, passed by the Appellate Authority under Section 28 (A) (4) of the Act, as passed in Appeal No. 10/2016-17, preferred by the petitioner, which has also been rejected by the Appellate Authority, thereby confirming the order dated 05.10.2016, passed by the Secretary, Sealing the premises under Section 28 of the Act. 4. 4. Initially, when the Writ Petition was filed before this Court, the Court considered the Appellate order, as passed in Appeal No. 35 of 2013-14, wherein, the Appeal under Section 28 (A) (4) of the U.P. Urban Planning and Development Act, 1973, was allowed by the judgment and order dated 6th June, 2014, and the Vice Chairman of the MDDA was directed to proceed further in accordance with the provisions of the Act of 1973. 5. The petitioner preferred the Writ Petition and this Court by an order dated 3rd January, 2019, had granted an interim order in favour of the petitioner, whereby, the effect and operation of the impugned orders under challenge were kept in abeyance. Immediately thereafter, on 25th February, 2019, the Coordinate Bench of this Court, after considering the stand taken by the MDDA and private respondent No.4 in their counter affidavit, had observed that the illegal construction, which was sealed by the MDDA under Section 28 of the Act. On 25th November, 2016, on an inspection, it was found that out of the total three seals, one seal was removed and the same has been used by petitioner for commercial purposes contrary to law. Finding the action of the petitioner to be misleading and in contravention of the provisions of the Act, this Court had vacated the interim order dated 3rd January, 2019 on 25th February, 2019 with the following directions: “In the counter affidavit filed by respondent no.3, it is stated that in regard to the illegal construction raised by the petitioner, sealing order was passed by respondent no.2 on 23.11.2016 and accordingly the unauthorized construction was sealed on 25.11.2016. It is also stated that as per inspection report, one seal put out of three had been removed and the ground floor was being used as shop and first floor was being used as Godown. Although interim order was granted to the petitioner by this Court vide its order dated 03.01.2019 but now it appears to the Court that the petitioner has not come with clean hands. Respondent no.4 also states in her counter affidavit that the petitioner is using the property for commercial purposes, which was sealed by the authority. In the above facts and circumstances, interim order dated 03.01.2019 is hereby vacated.” 6. Respondent no.4 also states in her counter affidavit that the petitioner is using the property for commercial purposes, which was sealed by the authority. In the above facts and circumstances, interim order dated 03.01.2019 is hereby vacated.” 6. Hence, as of now, the proceedings under Sections 27 and 28 of the Act has attained the finality, as against the petitioner and the grievance of the respondent No.4 is that despite of having lost from all Courts, no action is being proceeded with as against the petitioner. 7. In response to the arguments extended by the private respondent No.4, who appeared in person, the petitioner has placed before this Court the compounding map which he submits was produced before the Development Authority for getting the construction compounded. 8. At least, this action of filing of the compounding application by the petitioner by invoking Section 32 of the Act of 1973 would tantamount to be an admission at the behest of the petitioner to the effect that the construction raised by him was in violation of Sections 14 and 15 of the Act. It has been stated at bar by the counsel for the respondents/Development Authority that even this compounding map as well as application accompanying thereto has been rejected by the Development Authority. 9. Be that as it may. The fact remains that the proceedings under Section 27 of the Act has attained the finality against the petitioner. According to the findings recorded by this Court when the premise was sealed and the petitioner’s appeal under Section 28 (A) (4) of the Act stood dismissed, still he has proceeded to open the seal on his own and used the sealed premises for commercial purpose. This action of the petitioner cannot be attributed to be an act of a law binding citizen, but, the MDDA expressed it inability to undertake the demolition drive as against the finalization of the order of the demolition due to non availability of the police force, the order could not be enforced. 10. In such an eventuality, when there is no interim protection in favour of the petitioner by this Court or any other courts, when the order of demolition as well as the order of sealing, have attained finality, the consequence thereto is bound to follow. 10. In such an eventuality, when there is no interim protection in favour of the petitioner by this Court or any other courts, when the order of demolition as well as the order of sealing, have attained finality, the consequence thereto is bound to follow. In such an eventuality and the situation, which is emanating from the record produced before this Court, further action was bound to be taken by the respondent Nos. 2 and 3 to overcome the embargo being faced by respondent Nos. 2 and 3 to make the impugned order effective. I direct the Senior Superintendent of Police, Dehradun to immediately provide enough police force to the MDDA for taking action in pursuance to the impugned orders under challenge and the counsel for the MDDA is directed to submit report of compliance by 26th March, 2019. 11. Put up this matter on 26th March, 2019. 12. Copy of the order be supplied to the parties on payment of usual charges today itself.