WPMS/239/2022
2022 Latest Caselaw 471 UK

IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
      ON THE 2ND DAY OF MARCH, 2022
                          BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


     Writ Petition (M/S) No. 239 of 2022


BETWEEN:
Shimla Enclave Welfare Society                    ...Petitioner
     (By Mr. T.A. Khan, Senior Advocate, assisted by Mr. Vinay
     Bhatt, Advocate)


AND:
Mussoorie Dehradun Development
Authority, Dehradun & others.                  ...Respondent
     (By Mr. Rahul Consul, Advocate for respondent nos. 1 & 2;
     Mr. J.C. Karnatak & Mr. P.C. Petshali, Advocates for respondent
     no. 3)



                        JUDGMENT

Heard learned counsel for the parties.

2. This writ petition has been filed by Shimla Enclave Welfare Society, Majra, District Dehradun through its President Mr. Yaqoob Siddiqui. The reliefs sought in the writ petition are as follows:-

"I. To issue a writ, order or direction in the nature of certiorari quashing order dated 18.01.2022, passed by Joint Chief Administrator, Uttarakhand Avas Evam Nagar Vikas Pradhikaran, Dehradun in Revision No. 593 of 2020 (Annexure No. 1 to this writ petition).

II. To issue a writ, order or direction in the nature of certiorari quashing the order dated 14-01-2019, passed by Chairman Mussorie Dehradun Development Authority, Dehradun in Appeal No. 168/2018-19 (Annexure No. 9 to this writ petition).

III. To issue a writ, order or direction in the nature of certiorari quashing the order dated 22-06-2019, passed by Respondent no. 1 in case no. 0102/S-2011, by which the respondent no. 1 has passed an order for sealing the premises of the petitioner (Annexure No. 8 to the writ petition).

IV. To issue suitable directions, directing the respondent no. 1 to sanction the site plan of the building of the petitioner situated at Khasra No. 160-Kha, Village Sewla Kalan, Dehradun, which is subject matter of the case no. 0102/S-11 of 2019, decided by the respondent no. 1 and unseal the same immediately."

3. Secretary, Mussoorie Dehradun Development Authority passed a sealing order against the petitioner-society on 12.02.2019. Petitioner filed Appeal against the sealing order, which was decided on 18.02.2019 and Appellate Authority granted opportunity to the petitioner to file an application for compounding of the unauthorized construction.

4. Pursuant to the order passed by Appellate Authority, a Compounding Application was filed by Mr. Yaqoob Siddiqui, who claims to be President of petitioner-society, on 04.03.2019. The said application was rejected by Secretary, Mussoorie Dehradun Development Authority, on 22.06.2019 on the ground that the application is moved by Mr. Yaqoob Siddiqui; while, sealing order was passed against Shimla Enclave Welfare Society.

5. Petitioner preferred an appeal against the order dated 22.06.2019 passed by Secretary before Commissioner/ Chairman, Mussoorie Dehradun Development Authority and the said appeal was dismissed, vide order dated 14.10.2019 on the ground that there was no

anomaly in the order passed by Secretary. Petitioner, thereafter, filed revision petition, which too was dismissed by Joint Chief Administrator, Uttarakhand Housing and Urban Development Authority, vide judgment dated 18.01.2022 and the orders passed by Secretary, Mussoorie Development Authority & Commissioner/ Chairman, Mussoorie Dehradun Development Authority were affirmed. Feeling aggrieved by the three orders, passed by different authorities under provisions of Uttarakhand Urban Development & Country Planning Act, 1973, petitioner has approached this Court.

6. Having regard to the facts and circumstances of the case, this Court does not find any valid reason to interfere with the orders impugned in this writ petition.

7. It is a fact that sealing order was passed against Shimla Enclave Welfare Society; and Mr. Yaqoob Siddiqui had stated in his letter dated 16.02.2019 addressed to respondent no. 1, that the aforesaid society is raising the construction, and all correspondence regarding construction be made with the Secretary of the said Society, then he could not have filed the compounding application in his own name. Even though Mr. Yaqoob Siddiqui claims to be President of the society, however, if ownership of the property vests in the society, then application for compounding has to be made in the name of the society and not the President.

8. Office bearers of a society may come and go, however, property of the society, if not

vested with the trustees, is deemed to be vested with the Governing Body of the society, by virtue of Section 5 of Societies Registration Act, 1860.

9. In such view of the matter, Secretary, Mussoorie Dehradun Development Authority was justified in holding that compounding application filed by Yaqoob Siddiqui would not be maintainable and it should have been filed in the name of the society. The Appellate and Revisional Authorities were therefore justified in not interfering with the order of Secretary, Mussoorie Dehradun Development Authority.

10. In such view of the matter, this Court declines to interfere in the matter.

11. However, having regard to the facts and circumstances of the case, the writ petition is disposed of by permitting the petitioner to make fresh compounding application to the Competent Authority. If such application is made within two weeks from today, the Competent Authority shall consider the same and pass appropriate order, as per law, within six months thereafter.

12. While taking decision in the matter, Competent Authority shall consider all relevant aspects. Respondent No. 3 and other stakeholders, if any, shall also be heard by Competent Authority, before taking any decision.

(MANOJ KUMAR TIWARI, J.) Navin