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2024 DIGILAW 552 (UTT)

Shikhar Parashar v. State of Uttarakhand

2024-08-16

RAKESH THAPILYAL, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The petitioner is seeking a direction for quashing the letter issued by the City Magistrate, Haldwani (Annexure7), whereby his application for sanction of the plan for setting up the petrol pump has not been decided till date. 2. The grievance of the petitioner is that he has given the application along with the documents of title, layout plan annexed for giving No Objection Certificate, and his application has not been decided till date. On 28.01.2020, copy of the application (Annexure-6) has been sent from the office of the District Magistrate, Nainital to the Sub Divisional Magistrate, Haldwani, District Supply Officer, Senior Superintendent of Police, Nainital, Executive Engineer, P.W.D., Haldwani, Joint Secretary, District Level Development Authority, Haldwani, Regional Officer Environment Protection and Pollution Control Board, Haldwani, Geologist Task Force, Haldwani, Chief Fire Officer, Haldwani, Joint Planner Town and Country Planning Department, Haldwani, for giving No Objection Certificate. However, vide Annexure-7, which is an internal communication between respondent no. 2-District Level Development Authority, and the Additional District Magistrate, Nainital, the application of the petitioner is not being approved and the NOC has not been granted to him. It is further stated in the writ petition that respondent no. 2 has relied upon Serial No. (iii) of Point 7.14 of the Uttarakhand Building Construction and Development Bye Laws/ Regulations, 2011, as amended in 2015, and come to the conclusion that the application for the proposed filling stations and filling cum service stations at the National and Regional and Internal Main Roads, outside the area of Master Plan on those agricultural/ rural area and open/ undeveloped/ barren areas, whose land use is not ascertained in Master Plan will be considered only after receiving the amount of 75% of the valuation of the land towards ucchikaran shulk. 3. Along with the petitioner, the petitioner has also placed on record true copy of Serial No. (iii) of Point 7.14 of the Uttarakhand Building Construction and Development Bye Laws/ Regulations, 2011, as amended in 2015 as Annexure-8. 4. In the above background, the petitioner is challenging the Uttarakhand Building Construction and Development Bye Laws/Regulations, 2011, as amended in 2015, particularly, Clause 3.3(vi) and Clause 7.14 of the said regulations, being violative of Article 14, 19(1)(g) and 300A of the Constitution of India. 5. The present writ petition was filed in the year 2020. 4. In the above background, the petitioner is challenging the Uttarakhand Building Construction and Development Bye Laws/Regulations, 2011, as amended in 2015, particularly, Clause 3.3(vi) and Clause 7.14 of the said regulations, being violative of Article 14, 19(1)(g) and 300A of the Constitution of India. 5. The present writ petition was filed in the year 2020. On notice of this writ petition counter-affidavits have been filed by respondent nos.1 and 4 on 17.08.2021 and 30.04.2021 respectively. The stand taken by the respondents in the counter-affidavits is that the present writ petition is not maintainable as the respondents have the power to make the bye-laws and to amend it. 6. In the counter-affidavit filed by respondent no. 1, it is stated in Paragraph No. 10 that as per Clause 1.1.2 of the Building Construction and Development Bye Laws/ Regulations-2011 (amended in 2015) are applicable to all regulated areas/ development areas and special development areas and will be applicable in all the areas located outside the above said areas. Clause 1.2.1 of the Regulations, 2011 further provides that the Bye-laws/ Regulations will be applicable on the development of any plot of land, redevelopment, sub-division or construction of building, reconstruction or alteration of any building. The Regulations have been placed on record as Annexure CA-2. There is a clear provision of land use conversion fees for the areas falling within the Master Plan area in case of contrary land use in Chapter 7 of the Building Construction and Development Byelaws/ Regulations, 2011 (amended in 2015), especially in Clause 7.14(i)(ii), and as per Clause 7.14(iii), there is a provision of upgradation charges for the areas falling outside the Master Plan area. 7. In the facts of the present case, the petitioner’s land is outside the Master Plan area, and he has sought clearance of his building plan to set up a petrol pump. During the pendency of this writ petition, on 20.02.2024, learned counsel for respondent no. 2 had sought time to file a detailed counter-affidavit clarifying as to for which area the Master Plan is already made. On 21.5.2024, by way of an application (IA No. 10695 of 2024), learned counsel for respondent no. 2 placed on record the amended bye-laws, which were amended on 25.10.2022. 8. 2 had sought time to file a detailed counter-affidavit clarifying as to for which area the Master Plan is already made. On 21.5.2024, by way of an application (IA No. 10695 of 2024), learned counsel for respondent no. 2 placed on record the amended bye-laws, which were amended on 25.10.2022. 8. In the counter-affidavit dated 17.04.2024, filed by A.P. Bajpai, Joint Secretary, District Level Development Authority, Zonal Office, Haldwani, it is stated that the after filing of this writ petition, the State Government vide notification dated 25.10.2022 has carried out the amendment in Chapter 3, clause 3.3.(VI) of the Building Construction and Development Bye-laws, 2011. A true copy of notification dated 25.10.2022 is annexed as Annexure-1 to the counter-affidavit. 9. Learned counsel for the respondents had stated that in Clause 7.14 of the earlier Regulations, 75% of the value of the land has to be paid for the purpose of conversion. However, as per the amendment made, only 7.5% of the value of land for setting up a filling station and filling cum service stations has to be paid, for seeking sanction. Even in the writ petition, the main grievance of the petitioner was that 75% value of the land to be paid for conversion and sanction of plan for setting up a petrol pump was on very higher side. The amendment carried out in the Regulations is as under: S. No. Current Provisions Amended Provisions (i) (ii) (iii) Applications for construction of proposed filling stations and filling-cum-service stations on national, provincial and other main highways in agricultural rural areas outside the Master Plan area and in such open/undeveloped/barren areas whose land use is not determined under the Master Plan will be considered only after receiving 75 percent of the land value as price enhancement fees. (3) No fees will be payable for approval of setting up of filling station/filling-cum-service station outside the Master Plan area but in the urban local body areas. (4) Outside the master plan area and outside the urban local body area, setting up of filling station/filling-cum-service station will be allowed after receiving land elevation fees of 7.5 percent of the land value. 10. (4) Outside the master plan area and outside the urban local body area, setting up of filling station/filling-cum-service station will be allowed after receiving land elevation fees of 7.5 percent of the land value. 10. A perusal of the above said amendment clarifying that initially even with respect to land falling in zonal regulations, 75% value of the land was to be deposited for sanctioning of plan, which has been reduced as per the amendment to 7.5% in the case of land, which is outside the municipal limits. The amount has been reduced from 75% to 7.5%. Since this amendment has already been carried out, no cause of action survives for entertaining this writ petition. 11. The writ petition is disposed of by giving directions to the respondents to decide the application of the petitioner by passing appropriate order within two weeks keeping in view the notification dated 25.10.2022 (Annexure-1 to the counter-affidavit filed by respondent no. 2), and inform to this Court. 12. Pending application, if any, also stands disposed of.