Uttarakhand High Court
SPA/328/2022 on 22 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE R.C. KHULBE
22ND NOVEMBER, 2022
SPECIAL APPEAL No. 328 OF 2022
Between:
Mohd. Arafeen.
...Appellant
and
State of Uttarakhand and others.
...Respondents
Counsel for the appellant. : Mr. B.B. Sharma, the learned counsel.
Counsel for the respondent nos. 1. : Mr. Anil Kumar Bisht, the learned
Additional Chief Standing Counsel for
the State of Uttarakhand.
Counsel for the respondent nos. 2 : Mr. Sandeep Kothari, the learned
and 3. counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
This Special Appeal is directed against the
common judgment passed by the learned Single Judge on
24.08.2022 in four Writ Petitions, including the Writ
Petition preferred by the present appellant, being Writ
Petition (M/S) No. 1661 of 2022, titled "Mohd. Arafeen v.
State of Uttarakhand and others".
2. By the impugned judgment, the learned Single
Judge dismissed the said four Writ Petitions, wherein the
appellant/ writ petitioner herein, and other writ
petitioners, sought a restraint against the respondent-
authorities 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. They also sought a
direction that the respondent-authorities should maintain
status quo with regard to the property in question till
conduct of a proper survey and planning.
3. The learned Single Judge noticed that the writ
petitioners in Writ Petition (M/S) No. 1659 of 2022,
namely Nadeem Ahmad and Zameer Ahmad, which was
also decided by the common impugned judgment, are
builders. They raised construction of a five-storey
building, without taking any permission/ sanction from the
Lake Development Authority, also known as the District
Level Development Authority. The said construction/
development have been raised contrary to the Master Plan
of the Nainital town.
4. The learned Single Judge noticed and rejected
the submission of the writ petitioners, that the Lake
Development Authority had not taken action against
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others similarly situated, by observing that the writ
petitioners cannot claim equality in illegality. The learned
Single Judge also referred to the supplementary affidavit
filed by the Secretary of the Lake Development Authority,
categorically stating that a report was called for from the
Associate Town Planner, Kumaon Region, Town and
Country Planning Department. The Associate Town
Planner had submitted the said report on 16.08.2022
indicating that the property in issue is situated in the
Green Zone/ Green Belt.
5. 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.
Consequently, the learned Single Judge did not find any
merit in the Writ Petitions, and dismissed the same.
However, on compassionate ground, since the order was
passed on 24.08.2022 - when monsoons were still active,
the writ petitioners were granted three months' time to
remove the encroachment/ illegal construction at their
own cost, failing which the authorities were given liberty to
undertake demolition and removal of the encroachment at
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the end of the three months' period, from the date of the
order.
6. The submission of the learned counsel for the
appellant is 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. It is his
case that the property was owned by Rahees Ahmad,
Nadeem Ahmad and Zameer Ahmad, who sold the
property to Parveen Begam, from whom the appellant
purchased the property. 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.
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7. We have considered the aforesaid submissions
of the learned counsel for the appellant, perused the
record, and the impugned order.
8. Pertinently, 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.
9. The appellant has not controverted the stand of
the respondents in their supplementary affidavit, which
has been taken note of by the learned Single Judge.
During the course of the submissions, the learned counsel
for the appellant submitted that the supplementary
affidavit was not served upon the appellant. However,
there is no such ground, or averment, made in the memo
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of appeal. The conduct of the appellant also belies the
said fact. Firstly, it was open to the appellant to ask for
the copy of the supplementary affidavit, when the matter
was heard. The impugned judgment shows that no such
request was made. Even after the passing of the
impugned judgment, no request for supplying the copy of
the supplementary affidavit was made to the counsel for
the respondents. The appellant has also not obtained the
copy of the same from the record as well. Therefore, the
submission that the appellant was not aware of the
contents of the supplementary affidavit cannot be
accepted. Even otherwise, in the present Special Appeal
as well, no effort has not 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.
10. 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.
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11. Counsel for the respondents, who appears 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.
12. In the light of the aforesaid, we find no merit in
the present Special Appeal, and the same is, accordingly,
dismissed.
13. In sequel thereto, pending application, if any,
also stands disposed of.
________________
VIPIN SANGHI, C.J.
____________
R.C. KHULBE, J.
Dt: 22nd November, 2022
Rahul
