WPMS/1048/2021
2021 Latest Caselaw 1780 UK

 IN THE HIGH COURT OF UTTARAKHAND
              AT NAINITAL
             ON THE 7th DAY OF JUNE, 2021

                            BEFORE:

 HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA


          Writ Petition (M/S) No.1048 of 2021

BETWEEN:

  Ramkishan and others                            .....Petitioners
  (Mr. Tapan Singh, Advocate)




AND:

  State of Uttarakhand & others               .....Respondents
  (Mr. T.S. Phartiyal, Addl. C.S.C. for the State, Mr. Rahul Consul,
  Advocate for respondent no.2 and Mr. S.S. Chauhan, Advocate for
  respondent no.4)



                         JUDGMENT

The brief facts, which engage consideration in the present writ petition are, that the petitioner contends that he had inherited a property which was lying in khasra no.652 located in Village Rawli Mehdoodpur, District Haridwar, which stands recorded in khatauni of 1426 to 1431; as a land recorded under shreni 6(2), non-agricultural land. The Haridwar Development Authority, was notified as a Development Authority, by virtue of issuance of a gazette notification on 04.06.1986 and, as a consequence thereto, 39 villages of District Haridwar, were included within the territory of the Development Authority.

2. On khasra no.652, over which the petitioner claims his right of ownership, fell in the development area and since a construction was being raised without their being a prior proper sanction u/s 14 of the Uttarakhand Urban Planning and Development Act of 1973 (as amended in 2009), (for short, the Act) a complaint was preferred by the neighbourer, who had an animosity with the petitioner, and on the basis of the said complaint, the cognizance was taken and a report was called. The Tehsildar is alleged to have submitted a report to the effect that the construction was raised by the petitioner, without taking a prior permission u/s 14 of the Act, hence, was an unauthorized construction, which was raised by the petitioner.

3. On initiation of the proceedings u/s 27 of the Act, a show cause notice was issued to the petitioner and a notice u/s 28, was also issued calling upon the petitioner to stop the construction by virtue of an order of 05.03.2016. However, the construction activity was not stopped and it was continued to be raised. Consequently, by an order of 25.02.2017, the premises was sealed by a sealing order u/s 28A (d ) of the Act.

4. It was thereafter, that the petitioner filed an application u/s 32 of the Act for compounding the construction thus raised by him, which was considered by the Development Authority, and the same was rejected by an order dated 03.08.2017. Despite the aforesaid proceedings, a four-storied

building was raised by the petitioner, without a sanction made in his favour. Petitioner preferred a Civil Suit before the court of Civil Judge (S.D.), in which initially there was a status quo order, granted in Misc. Civil Appeal No.12 of 2017; but later on the Misc. Civil Appeal No.12 of 2017 was dismissed by the court of learned District Judge by an order of 31.05.2017. As against the order of rejection of the compounding application and issuing an order of demolition dated 03.08.2017, an appeal was preferred by the petitioners being Appeal No.28 of 2016-17 before the competent appellate authority, as constituted under the Act of 1973 and the same was also dismissed on 23.08.2017 by the appellate authority. The two orders i.e. 03.08.2017 and dismissal of the appeal by an order of 23.8.2017, was put to challenge by the petitioner by way of filing a revision before the State, being Revision No.466 of 2017, which too was dismissed by the judgment of 06.12.2017. Against these three consecutive and concurrent orders/judgments dated 03.08.2017, 31.05.2017 and 23.08.2017, the petitioner had preferred a writ petition being WPMS No.3294 of 2017, "Balkishan vs. State of Uttarakhand and others", which was dismissed by the learned Single Judge by the judgment of 26.06.2018.

5. Being aggrieved against the said order, a special appeal being SPA No.622 of 2018 was preferred by the petitioner and the special appeal too was dismissed by the Division Bench by the

judgment of 08.08.2017, meaning thereby, as far as the petitioner is concerned, the construction raised by him over khasra no.652, has been consistently and concurrently, held to be an unauthorized construction and the demolition order was affirmed upto to the special appellate court of this Court.

6. The respondent in compliance of the said judgment passed by the Division Bench on 08.08.2018, affirming the order of demolition dated 03.08.2017, proceeded to issue an impugned order/ letter of 11.05.2021, for the purposes of execution of the demolition order, which is under challenge before this Court; in the present writ petition with the relief that the respondents may be directed to reconsider application for compounding u/s 32 of the Act, which was filed by the petitioner earlier on 18.10.2016, the rejection of which was already confirmed by the Division Bench of this Court vide its judgment dated 08.08.2018.

7. There are two fold arguments, which has been raised by the learned counsel for the petitioners, that if the judgment of the Division Bench is taken into consideration, in fact, without its compliance in its totality, the order of demolition of 03.08.2017, could not be put to execution, as against the petitioner, as in the concluding paragraph of the said judgment, there was a general direction, for taking an action against all unauthorized constructions which were raised in the area, and without taking such action against others

who had raised unauthorized construction, the order of 03.08.2017 which was affirmed by the judgment of special appeal on 08.08.2018, cannot be executed by the impugned order of 11.05.2021 against the petitioner. The tenacity of this argument of the learned counsel for the petitioner cannot be accepted by this Court, for the reason being, that there cannot be a negative parity. Because, the act of raising an unauthorized construction in violation of section 14 or in violation of section 32 of the Act of 1973, is an act in persona, and so far as the petitioner is concerned, right from 03.08.2017 passed by the Development Authority, till the dismissal of special appeal on 08.08.2018, consistently the construction was held to be in violation of the Act and that has attained finality. The impugned order was nothing but a simpliciter act of an enforcement of the decision which had already taken by the competent authorities and hence under the garb of an order dated 11.05.2021, and a challenge to its now, their cannot be a reopening of the chapter afresh altogether by the petitioner by claiming a negative parity, that since no action has been taken against other unauthorized constructions the order of 03.08.2017, cannot be enforced against him. Thus, as per the view of this Court, this argument is not sustainable and is rejected. The decision taken by the competent authority on the Compounding application of 18.10.2016 is yet again an issue which cannot be permitted to be reopened to be reagitated by directing to reconsider it, because the said issue has already attained finality upto the Division Bench

of this Court and the said judgment has already attained finality, hence, no such direction can be issued for reconsidering the compounding application of 18.10.2016, which has already been judicially decided against the petitioner, upto this Court by the Division Bench.

8. In view of the aforesaid, I do not find any merit in the writ petition. Consequently, the writ petition lacks merit and the same is accordingly dismissed.

(SHARAD KUMAR SHARMA, J.) Rajni