A division bench of Justice Vipin Sanghi and R.C. Khulbe of Uttarakhand HC dismissed the special appeal against the order passed by the learned single Judge.
This court has rejected the submission of the appellant that he was not aware of the contents of the supplementary affidavit and even noticed that he has not explained as to what is his defence to the said notice, which, in any event, stands served upon him.
Facts:
This Special Appeal is directed against the common judgment passed by the learned Single Judge on 24.08.2022 in four Writ Petitions. By the impugned judgment, the learned Single Judge dismissed the said four Writ Petitions, wherein they sought a restraint against the respondentauthorities not to dispossess/ evict them from their respective properties, except through due process of law provided under the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, and not to demolish the establishments of the writ petitioners without giving them an opportunity of being heard.
The learned Single Judge also observed that, as per the Master Plan of Nainital, the records, and the submissions made by the learned counsels, it was clear that unauthorized construction had been raised in the Green Zone/ Green Belt, which is completely prohibited.
Learned counsel for the appellant submitted that the appellant is the purchaser of the dwelling unit from the original owners. The notice dated 14.07.2022 has been issued in the name of the original owners, and not in the name of the appellant. The further ground taken by the appellant is that the Nagar Palika Parishad, Nainital has mutated the name of the appellant in the records for the purpose of collecting property tax.
The submission is that, since the property tax is being collected, the construction of the property in question stands regularized. The appellant contends that there is no danger of causing pollution due to the raising of the construction of the building. The further submission of the appellant is that the appellant has applied for compounding of the construction raised, and that application has not been disposed of.
Observations of the Court
The court observed that the appellant did not dispute the fact that the construction, in respect whereof the present Writ Petition has been preferred, is illegal construction, inasmuch as, the same has been raised without any sanction of building plan. The appellant half-heartedly claims that the construction has not been raised in the Green Zone/ Green Belt area. On the one hand, the appellant claims that the construction has not been raised in the Green Zone/ Green Belt area, while on the other hand, he states that the construction is not causing any pollution and, therefore, is not affecting the surrounding environment, even if the same lies in the Green Zone/ Green Belt area.
The submission that the appellant was not aware of the contents of the supplementary affidavit was not accepted as no effort been made by the appellant to controvert the contents of the supplementary affidavit. Mere collection of property tax from the appellant does not render the construction legal. The taxation department is not concerned with the nature of construction i.e. whether the same is legal or illegal. Even though, it is claimed that the appellant was not noticed, he has not explained as to what is his defence to the said notice, which, in any event, stands served upon him.
The appellant is not in a position to deny the fact that the construction raised is completely illegal. Counsel for the respondents, who appeared on advance notice, has submitted that there is no question of compounding of the construction raised in the Green Zone/ Green Belt area, as the same is not even compoundable. In the light of the aforesaid, there was no merit in the present Special Appeal, and the same is, accordingly, dismissed.
Decision:
The special appeal was dismissed being devoid of any merit.
Case: Mohd. Arafeen. vs State of Uttarakhand and others
Citation: SPECIAL APPEAL No. 328 OF 2022
Coram: Justice Vipin Sanghi and R.C. Khulbe
Dated: 22.11.2022
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