Uttarakhand High Court
Gaurav Kumar Pundir vs State Of Uttarakhand And Others on 23 January, 2021
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (PIL) No. 53 of 2017
Gaurav Kumar Pundir ....... Petitioner
Versus
State of Uttarakhand and others ....Respondents
Present: Mr. Shobhit Saharia, learned counsel for the petitioner.
Mr. S. S. Chauhan, learned counsel for the respondent
No.2.
Mr. Rakesh Thapaliyal, learned Senior Counsel, assisted
by Mr. Aditya Pratap Singh, learned counsel for the
respondent nos. 5 to 8.
Hon'ble Sharad Kumar Sharma, J.
This matter was assigned to this Court, by the
orders of Hon'ble the Chief Justice, on an urgency
application, which was preferred by the respondent nos.
5 to 8, on 19th of January, 2021, under the pretext of
issuance of notice on 18th of January, 2021, by the
Haridwar Development Authority, whereby respondent
nos. 5 to 8, were directed to vacate the premises which
was held to be an unauthorized encroachment and the
constructions, which they have raised, the said issue
has been settled in pursuance to the judgment which
was rendered by the Hon'ble Division Bench of this
Court dated 24th of December, 2020.
2. In fact, the history on records, of the
litigations itself speaks about the volumes of the
conduct of the respondent nos. 5 to 8; because it has
already been recorded by the Hon'ble Division Bench,
vide its judgment dated 24.12.2020, which remained
undisturbed by the Hon'ble Apex Court, that they had
violated three sealing orders which were passed against
them under Section 28 of the Act, i.e. dated 10th of
September 2015, 11th of April, 2016 and 8th of June,
2016, not even that even, thereafter, when they have
filed an application for regularization of the
construction, it would amount to be an admission of the
fact that the construction raised by them thereafter
despite of the sealing orders since 2015, were
unauthorized, hence the compounding under Section
32 of the Act, was rejected on 18.12.2020, which is an
order, which has attained finality, as per the findings
recorded by the Hon'ble Division Bench Judgment of
24th December, 2020.
3. However, the matter travelled upto the
Hon'ble Apex Court at the behest of respondent nos. 5 to
8. The Hon'ble Apex Court, granted a latitude to the
respondent nos. 5 to 8, on the basis of their own
undertaking and statement that they would be vacating
the premises on their own and the entire complex may
be resealed by the Haridwar Development Authority and,
thereafter, the competent authority was directed to
identify the excess unauthorized portion of the building
and for a period of two weeks only the status quo was
directed to be maintained by the orders of Hon'ble Apex
Court. The Hon'ble Apex Court's judgment, on 2nd of
January, 2021, contained three major directions- (first),
the respondent nos. 5 to 8 were to vacate the premises;
(second), the Development authority was to seal the
premises; (third), the development authority was to
identify the excess unauthorized constructions, which
can be demolished or removed by the respondent nos. 5
to 8 themselves within one week.
4. The respondent nos. 5 to 8 in compliance of
the judgment of Hon'ble Apex Court dated 02.01.2021,
and the liberty which was granted by the Hon'ble Apex
Court to approach the High Court, are said to have filed
an application on 8th of January, 2021. Thereafter, the
matter was listed on 11th January, 2021 and 15th of
January, 2021, but the respondent nos. 5 to 8; never
made any attempt or any sincere efforts to express the
said urgency before Hon'ble the Division Bench, for
passing an appropriate order. For the reason being that
the first part of the judgment of the Hon'ble Apex Court
dated 2nd of January, 2021, itself was not complied with
within time by the respondent no. 5 to 8. The
constitutional courts could exercise its equitable
jurisdiction, only in relation to those persons who, abide
the Law. The Historical background of the entire
controversy shows that the respondent no.5 to 8, have
been continuously derelicting in complying the orders
passed by the competent authorities; as well as by the
Courts, and, as such, the notice which has been
brought on record by virtue of an application of urgency
preferred by the respondent nos. 5 to 8 i.e. dated 18th of
January, 2021; calling upon the respondent nos. 5 to 8,
to vacate the premises and to handover its possession to
the Development Authority, is strictly as per the
directions of the Hon'ble Apex Court, which does not call
for an interference, on an urgency application in view of
the undertaking given by the respondent nos. 5 to 8
themselves before the Hon'ble Division Bench; as well as
before the Hon'ble Apex Court, I do not find any
urgency, as such, for the reasons given in the
application.
5. Consequently, the application for urgency as
mentioned to be taken up, is hereby rejected.
6. Accordingly, list the matter on the date already
fixed by the Court.
(Sharad Kumar Sharma, J.)
Vacation Judge
23.01.2021
Kaushal
