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2023 DIGILAW 663 (UTT)

Chandresh Mamgai v. State of Uttarakhand

2023-12-06

RAVINDRA MAITHANI

body2023
JUDGMENT : RAVINDRA MAITHANI, J. 1. By means of the instant petition, the petitioners seek directions to the respondent no. 2, the District Level Development Authority, Nainital (“the Development Authority”) to open the seal placed on the old portions of the petitioners’ building, Parsi Lal Sah Studio Building, Mallital, Nainital (“the building”). 2. Facts necessary to appreciate the controversy, briefly stated, are as follows: (i) The petitioner no. 1 is a tenant of the first floor of the building by virtue of an allotment order issued in the year 1980, in favour of his father. (ii) The petitioner no. 2 is the tenant of the ground floor of the building. (iii) On 15.04.1999, the Development Authority accorded approval for necessary repairs of the building subject to certain conditions. (iv) On 06.08.1999, the approval for repairs accorded on 15.04.1999 was cancelled. (v) On 04.09.1999, again, the Development Authority accorded approval for necessary repairs of the building. (vi) Pursuant to the approval dated 04.09.1999, the petitioners did not carry out any repair work. (vii) On 29.11.2013, the petitioners again sought permission for the repairs of the building from the Development Authority. (viii) On 19.07.2016, notices were issued to the petitioners by the Nagar Palika, Nainital, informing them that the building is in dilapidated condition. Therefore, they should ensure its repairs. (ix) On 18.07.2017, the petitioner no. 1 made a communication to the Additional District Magistrate, Nainital, seeking compensation for the loss caused due to heavy rains, as also seeking directions to the Development Authority for repairs of the building. (x) The Development Authority noticed that the petitioners and others replaced the retention wall adjoining the building to a length of 12 metres and had erected four RCC Columns for construction of a building. Therefore, on 18.10.2016, Secretary, Nainital Lake Region Special Area Development Authority, Nainital, in Case No. 11166/45/2016, Nainital Lake Region Special Area Development Authority, Nainital vs. Smt. Jayanti Gurrani and Others (“the case”) passed an order for sealing of the building. In that order, the construction that was raised till that stage has also been clearly recorded. According to it, in the front portion of the retention wall, RCC Columns were raised in an area of 11 x 2.80 metres and partially, brick wall was also raised, which was covered by a polythene. In that order, the construction that was raised till that stage has also been clearly recorded. According to it, in the front portion of the retention wall, RCC Columns were raised in an area of 11 x 2.80 metres and partially, brick wall was also raised, which was covered by a polythene. Thereafter, the order speaks that lintel on the RCC Columns were laid and the unauthorised construction was continued. 3. It is argued on behalf of the petitioners that pursuant to order dated 18.04.2016, passed in the case, the building was actually sealed. Thereafter again, according to the petitioners, on 08.04.2021, 31.05.2021 and 01.06.2021, the officers of the Development Authority sealed the windows and doors portion of the petitioners’ residential accommodation without any order, as required under Section 28-A of the Uttarakhand Urban and Country Planning and Development Act, 1973 (“the Act”). The petitioners seek directions that such sealing be opened, which were done on these three days, namely, 08.04.2021, 31.05.2021 and 01.06.2021. 4. The Development Authority filed its counter affidavit. According to it, the building had already been sealed on 18.10.2016, by an order passed in the case, but, it was noted that the petitioners had continued illegal constructions. Therefore, the Secretary of the Development Authority was informed and under his oral orders, the building was sealed on 08.04.2021. When this further sealing of 08.04.2021 was violated, it is the case of the Development Authority that again sealing was done on 31.05.2021. According to the Development Authority, when the officers/officials visited the building for sealing purposes, they were obstructed in their discharge of duties. Therefore FIR No. 31 of 2021, under Sections 186 and 353 IPC, was also lodged at Police Station Mallital, District Nainital, which is Annexure No. B-8 to the counter affidavit filed by the Development Authority, which reveals that the FIR was named against the petitioner no. 1 and one other. 5. It is the case of the Development Authority that in the Year 2016, when unauthorised construction was noted by the Development Authority, action was taken, and at that time, the petitioner no. 1 and others gave an undertaking that they would simply repair the retention wall and would not raise any RCC Columns. In that undertaking, they had also recorded that they had already cut the steel rods that were erected for RCC Columns. 1 and others gave an undertaking that they would simply repair the retention wall and would not raise any RCC Columns. In that undertaking, they had also recorded that they had already cut the steel rods that were erected for RCC Columns. This has been stated in Para 14 of the counter affidavit filed by the Development Authority, enclosing therewith the undertaking allegedly given by the petitioner no. 1 and others. 6. Parties have filed additional pleadings also. The petitioners, in their supplementary rejoinder affidavit, had denied of giving any undertaking on 12.08.2016. In fact, according to the petitioners, their signatures were forged on that undertaking. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioners would submit that the action of sealing done by the Development Authority on 08.04.2021, 31.05.2021 and 01.06.2021 is against law. Sealing cannot be done without a written order. He would refer to the provisions of Section 28-A of the Act, which reads as follows: “28-A. Power to seal unauthorised development: (1) It shall be lawful for the Vice Chairman of the concerned Local Development Authority/Persons or Officers designated to perform the functions under this Act, of the Urban Local Bodies and Village Panchayats declared as Local Development Authority/ Local Authority under this Act or an officer empowered by him in the behalf, as the case may be, at any time before or after making an order for the removal or discontinuance of any development under Section 27 or Section 28 to make any order directing the sealing of such development in a development area in such manner as may be prescribed for the purposes of carrying out the provisions of this Act. (2) Where any development has been sealed, the Vice Chairman of the concerned Local Development Authority/Persons or Officers designated to perform the functions under this Act, of the Urban Local Bodies and Village Panchayats declared as Local Development Authority/ Local Authority under this Act or the officer empowered by him in this behalf, as the case may be, may, for the purpose of removing or discontinuing such development order the seal be removed. (3) No person shall remove such seal except under an order made under Sub-section (2) by the Vice Chairman of the concerned Local Development Authority/Persons or Officers designated to perform the functions under this Act, of the Urban Local Bodies and Village Panchayats declared as Local Development Authority/ Local Authority under this Act, or the officer empowered by him in this behalf. (4) Any person aggrieved by an order made under Sub-Section (1) or sub-section (2) may appeal to the Chairman against that order within thirty days from the date thereof and the Chairman may after hearing the parties to the appeal, either allow or dismiss the appeal. (5) The decision of the Chairman shall be final.” 9. Learned counsel would also refer to Section 43(1)(d) of the Act to argue that, in fact, every order, passed under the Act has to be served on the party. Section 43(1)(d) of the Act reads as hereunder: “43. Services, of notices: (1) All notices, orders and others documents required by this Act or any rule or regulation made and there under to be served upon any person shall save as otherwise provided in this Act or such rule or regulation be deemed to be duly served: (a).......................................... (b).......................................... (c).......................................... (d) in any other case, if the document is addressed to the person to be served: (i) is given or tendered to him. (ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the development area or is given or tendered to some adult member of his family or is affixed on some conspicuous part of land or building to which it relates. (iii) is sent by registered post to that person.” 10. It is argued that in order to seal a premises, first and foremost, an order is to be passed under Section 28A of the Act and, thereafter, it has to be communicated, as per the provisions of Section 43(1)(d) of the Act. But, it is argued that it has not been done in the instant case. Therefore, the sealing done on 08.04.2021, 31.05.2021, and 01.06.2021 deserve to be opened. He would also submit that, in fact, the Development Authority, in Para 18 of its counter affidavit, has categorically admitted that the sealing was done by the oral orders of the Secretary. 11. But, it is argued that it has not been done in the instant case. Therefore, the sealing done on 08.04.2021, 31.05.2021, and 01.06.2021 deserve to be opened. He would also submit that, in fact, the Development Authority, in Para 18 of its counter affidavit, has categorically admitted that the sealing was done by the oral orders of the Secretary. 11. In support of his contention, learned counsel for the petitioners has placed reliance upon the principles of law, as laid down by the Hon’ble High Court of Patna in the case of Thakur Rama Raman vs. Patna Municipal Corporation, 2019 SCC Online Pat. 1695. In the case of Thakur Rama Raman (supra), the petitioner in that case was directed to remove the KIOSK situated in a commercial Complex, Patna, within one week, with further directions that if it is not done, it shall be forcibly demolished/removed. 12. In the case of Thakur Rama Raman (supra), the Hon’ble Patna High Court, inter alia observed that “Such overnight action of cancellation of KIOSK and demolition by oral order has to be deprecated as it has happened again due to total unmindful and irresponsible action of a statutory authority misusing his power whimsically and capriciously.” 13. Further, in the case of Thakur Rama Raman (supra), the Hon’ble Patna High Court, in Paragraph No. 32 observed as follows: “32. This Court has no difficulty in concluding that the Municipal Commissioner of the Corporation while directing oral demolition of the KIOSK did not take care of the provisions of the Byelaws of 2014 and the reference of the said Byelaws saying that the KIOSK was situated in the set back is only a pretext and defence which he has sought to take against his own action which he was very well knowing that he was taking such action in haste with sole intention not to allow the petitioner to knock the door of the court of law.” 14. On the other hand, learned counsel appearing for the Development Authority would submit that the building had already been sealed in the Year 2016 by a valid order passed on 18.10.2016, in the case. He would submit that RCC Columns were raised from the ground. On multiple occasions, the petitioners were informed that they cannot raise such structure unless permission is sought from the Development Authority. 15. He would submit that RCC Columns were raised from the ground. On multiple occasions, the petitioners were informed that they cannot raise such structure unless permission is sought from the Development Authority. 15. Learned counsel for the Development Authority would also submit that despite sealing order dated 18.10.2016, the petitioners continued raising their unauthorised construction. Initially, there was a retention wall, and four RCC Columns, but when the first sealing order on 18.10.2016 was passed, uptil then, lintel on the ground floor was laid. It is argued that the petitioner continued unauthorised construction. They laid lintel on the first floor and opened the doors on that unauthorised construction so as to put it to use. It is argued that in order to prevent the petitioners from using the sealed premises, further plies were placed on the newly opened doors and windows. 16. Learned counsel for the Development Authority would further submit that, in fact, no written order, as such, is required for sealing of any premises. He would submit that on 07.04.2021, when sealing was done by the Officials/Officers of the Development Authority, it was authenticated by the Secretary on 08.04.2021. He would submit that such authentication makes the action valid, in view of Section 46 of the Act, which reads as follows: “46. Authentication of orders and documents of Authority: All permissions, orders, decisions, notices and other documents of the Authority shall be authenticated by the signature of the Secretary to the Authority or any other officer authorised by the Authority in that behalf.” 17. Learned counsel for the Development Authority would also submit that in case the sealing is directed to be opened, it would be allowing perpetuating a wrong that has been committed by the petitioners by raising unauthorised construction and intruding into the property, which had already been sealed in the year 2016. 18. During the course of hearing, learned counsel for the parties have also referred to the photographs that have been enclosed with their respective pleadings. 19. It is a writ petition. It is a prerogative remedy, which is not a matter of course. While exercising this extraordinary jurisdiction, the Court is also obliged to bear in mind the conduct of the parties before it. Such writ is issued for doing substantial justice. They are generally not based on technicality. 20. 19. It is a writ petition. It is a prerogative remedy, which is not a matter of course. While exercising this extraordinary jurisdiction, the Court is also obliged to bear in mind the conduct of the parties before it. Such writ is issued for doing substantial justice. They are generally not based on technicality. 20. In the case of K.D. Sharma vs. Steel Authority of India Limited and Others, (2008) 12 SCC 481, the Hon’ble Supreme Court observed that “the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.” 21. While referring to the judgment in the case of R. vs. Kensington Income Tax Commissioners, (1917) 1 KB 486, in Paragraphs 35-37 of the judgment in the case of K.D. Sharma (supra), the Hon’ble Supreme Court observed that: “35. The underlying object has been succinctly stated by Scrutton, L.J. in the leading case of R. vs. Kensington Income Tax Commissioners, (1917) 1 KB 486: “..........it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-it says facts, not law. He must not misstate the law if he can help it-the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.” “36. A prerogative remedy is not a matter of course. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “We will not listen to your application because of what you have done.” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.” “37. In R. vs. Kensington Income Tax Commissioners, (1917) 1 KB 486 “........Where an ex-parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.” 22. The petitioners claim that sealing of their windows and doors have been done without any written order, which is mandate of law. It is not the case of the petitioners that the construction, which has been raised is authorised. It is not denied by the petitioners that in the year 2016, unauthorised construction was sealed by the Development Authority. 23. The petitioners claim that sealing of their windows and doors have been done without any written order, which is mandate of law. It is not the case of the petitioners that the construction, which has been raised is authorised. It is not denied by the petitioners that in the year 2016, unauthorised construction was sealed by the Development Authority. 23. In fact, during the course of argument, on behalf of the petitioners, it is argued that pursuant to order dated 18.10.2016, passed in the case, the unauthorised construction had, in fact, been sealed. The order dated 18.10.2016, passed in the case, is on record. It is filed by the petitioners themselves. It records as to what was the unauthorised construction then. It had RCC columns with partial brick wall and lintel on the ground floor. Along with Annexure No. 16, the petitioner had filed certain photographs of the unauthorised construction of the year 2017. It, in fact, confirms the position of unauthorised construction on 18.10.2016. The photographs of 06.06.2017, have been filed by the petitioners along with Annexure No. 16 at Page No. 81. It shows the retention wall; it shows the RCC Columns; it shows the lintel on the ground floor, but no lintel on the first floor. It is admitted and undisputed that on 18.10.2016, this unauthorised construction was sealed. 24. The petitioners have also filed the photographs of the unauthorised construction as it stood in the month of June, 2021. It is also part of Annexure No. 16 at Page No. 82. It confirms that post sealing of the unauthorised construction, on 18.10.2016, the unauthorised construction continued. Not the RCC Columns were raised to the fullest, but the lintel on the first floor was also laid. 25. During the course of hearing, the Court posed a question to the learned counsel for the petitioners as to who laid this lintel in the first floor? He would reply that some other tenant might have done it. 26. It is admitted case of the parties that on 15.04.1999, the petitioners were granted permission to repair the building. That order of the Development Authority is Annexure No. 4 to the writ petition. This is a very important document. Not only it grants permission to carry out the repairs, subject to certain conditions, but it also records the measurement of the building. That order of the Development Authority is Annexure No. 4 to the writ petition. This is a very important document. Not only it grants permission to carry out the repairs, subject to certain conditions, but it also records the measurement of the building. It is the case of the petitioners that they were repairing the building, whereas, it is the case of the Development Authority that the petitioners have extended and raised unauthorised construction towards Nainital-Kaladungi Road. They built the retention wall and from that retention wall, they raised RCC Columns for raising a structure. 27. An ancillary question is as to whether it was the repair or new construction on a new place? On 05.12.2023, when the matter was heard, the Court, sought suggestion from the learned counsel for the petitioners as to whether a Commission may be issued to measure the building and the construction area. Had it been done, it could have immediately confirmed as to whether the petitioners were merely carrying the repairs or they are unauthorisedly extending the construction on a portion, where the building was not in existence. It is so because the measurement of the building is recorded in the permission dated 15.04.1999, given to the petitioners for carrying out repairs. 28. Learned counsel for the petitioners did not deny for the suggestions, but he would submit that the question of unauthorised construction, its limit or extent is not an issue in this case. It is true also. But then, fairness goes beyond what is replied on behalf of the petitioners. 29. There are two issues, which would find deliberation. They are as follows: (i) Has the development authority illegally sealed unauthorised constructions on 08.04.2021, 31.05.2021 and 01.06.2021? Related to it is what is the effect of sealing by oral orders? (ii) Have the petitioners come before this Court with their clean hands? 30. A bare reading of Section 28A makes it abundantly clear that the sealing could be done by an order. That order also requires to be served on the person unauthorisedly raising constructions. On this aspect, it is admitted in Para 18 of the counter affidavit filed by the Development Authority that on 07.04.2021, when the officials/officers of the Development Authority found unauthorised constructions being continued, they immediately informed the Secretary and under his oral orders, they sealed the unauthorised construction. 31. On this aspect, it is admitted in Para 18 of the counter affidavit filed by the Development Authority that on 07.04.2021, when the officials/officers of the Development Authority found unauthorised constructions being continued, they immediately informed the Secretary and under his oral orders, they sealed the unauthorised construction. 31. Learned counsel for the Development Authority had invited the attention of this Court to the sealing proceedings, which is on record (Annexure No. 7 to the counter affidavit of the Development Authority), to argue that, in fact, the sealed memo was signed by the Secretary of the Development Authority on 08.04.2021. This is not as such pleaded anywhere by the Development Authority. There is no pleading that the sealing memo was authenticated by the Secretary on 08.04.2021. Without there being any pleading, this Court cannot read the Annexure No. 7 to the counter affidavit that it bears the signature of the Secretary. 32. There was no written order for sealing. Does it mean that the sealing done on 08.04.2021, 31.05.2021 and 01.06.2021 is illegal? The answer is in NEGATIVE. 33. The sealing that has been done by the Development Authority on 08.04.2021, 31.05.2021 and 01.06.2021 is not illegal for the simple reason that the sealing of the unauthorised construction had already been done by the Development Authority on 18.10.2016. It has never been de-sealed. Sealing of an unauthorised construction was done, which means that sealed area could not be further constructed by anyone. Record shows that the sealing order dated 18.10.2016 was violated. The petitioners have admitted it (even during the course of argument, it is argued that perhaps some other tenant has laid lintel on the first floor; photographs filed by the petitioners also prove it). 34. As stated, Annexure No. 16 to their writ petition confirms it. While reading the sealing order dated 18.10.2016, passed in the case, along with Annexure 16 of the writ petition makes it clear. There are two photographs. One of the Year 2017 (Page No. 81) and the another photo of the Year 2021 (Page No. 82). It confirms that even after sealing, the unauthorised construction continued and lintel in the first floor was laid. In fact, in such case, no further sealing order was required. It was just to enforce that sealing order which was passed on 18.10.2016. It confirms that even after sealing, the unauthorised construction continued and lintel in the first floor was laid. In fact, in such case, no further sealing order was required. It was just to enforce that sealing order which was passed on 18.10.2016. Whatever was required to be done so as to keep sanctity of the sealing order, the officers/officials of the Development Authority were under obligation to take such steps, which they did take on 08.04.2021, 31.05.2021 and 01.06.2021. What is more interesting to note is that not only the unauthorised construction continued, but it is alleged that the petitioner no. 1 obstructed officers/officials of the Development Authority in discharge of their duties, of which an FIR was lodged against him. 35. The petitioners have committed a wrong by unauthorisedly raising constructions by removing a retention wall, raising RCC Columns on it, when it was sealed in the year 2016. After sealing order dated 18.10.2016, the petitioners continued with the unauthorised constructions. They continued raising the constructions unauthorisedly in the heart of the city of Nainital. It is stated that it was done in the Nainital-Kaladungi Road. 36. It is argued on behalf of the Development Authority that the petitioners had opened doors and windows towards the unauthorised construction, and they had started using that portion. Therefore, it was to be sealed on multiple occasions to preserve the sanctity of sealing order passed on 18.10.2016, passed in the case. 37. In view of the forgoing discussion, this Court is of the view that the sealing that was done on 08.04.2021, 31.05.2021 and 01.06.2021, is not illegal. For this purpose, no written order, as such, is required. There had been a sealing order dated 18.10.2016 at place. The sealing order was violated. It was incumbent on the Officers/Officials Development Authority to preserve the premises in the position, in which it was sealed. 38. Have the petitioners come with the clean hands? The petitioners are not before the Court with the clean hands. They have raised unauthorised constructions. The unauthorised construction was sealed. Despite that, it is the case that the petitioners opened their windows and doors towards that area. The photographs, which have been filed by the petitioners, speak the story in volume. In fact, the petitioners want to protect the wrong committed by them by way of filing the instant petition. Such wrongs cannot be protected. The unauthorised construction was sealed. Despite that, it is the case that the petitioners opened their windows and doors towards that area. The photographs, which have been filed by the petitioners, speak the story in volume. In fact, the petitioners want to protect the wrong committed by them by way of filing the instant petition. Such wrongs cannot be protected. The Court wonders as to why the Development Authority has not taken any action in the matter. But, it was told that in view of the status quo order, passed in the instant petition, which was recently modified, the Development Authority could not proceed further. 39. Having considered, this Court does not see any reason to make any interference. Accordingly, the writ petition deserves to be dismissed. 40. The writ petition is dismissed.