Uttarakhand High Court
SPA/351/2022 on 13 March, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE ALOK KUMAR VERMA
13TH MARCH, 2023
SPECIAL APPEAL No. 351 OF 2022
Between:
Nadeem Ahmad and another. ...Appellants
and
State of Uttarakhand and others. ...Respondents
Counsel for the appellants. : Mr. Siddhartha Sah, the learned
counsel.
Counsel for the respondent nos. 1, : Mr. Pradeep Joshi, the learned
2, 4 and 5. Additional Chief Standing Counsel for
the State of Uttarakhand.
Counsel for respondent no. 3. : Mr. Sandeep Kothari, the learned
counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
The present Special Appeal is directed against
the common judgment rendered by the learned Single
Judge in a batch of Writ Petitions on 24.08.2022,
including Writ Petition (M/S) No. 1659 of 2022 preferred
by the appellants herein. The learned Single Judge had
dismissed the said Writ Petition, wherein the appellants/
writ petitioners had sought a direction to the
respondent-authorities not to dispossess/ evict the
appellants/ writ petitioners, except under the provisions
of the U.P. Public Premises (Eviction of Unauthorized
Occupants) Act, 1972, and not to demolish the
structures, without giving them an opportunity of being
heard. They had also sought maintenance of status quo
in relation to the property.
2. The Writ Petition had been preferred by the
builders and occupiers of the five storeyed building,
which had been constructed, admittedly, without
obtaining any prior permission of the Lake Development
Authority, which is now known as the District Level
Development Authority, and which is stated to be
contrary to the master-plan of the Nainital town. The
said construction, apart from being unauthorized, was
raised in the Green Belt. The respondents relied upon
Annexure SA-1 to the Supplementary Affidavit filed in
the writ proceedings, in support of their aforesaid
submission.
3. The case of the appellants/ writ petitioners
was that other structures have also been raised in the
vicinity, which had not been demolished. This
submission of the appellants was rejected, with the
observation that the appellants cannot claim negative
equality, i.e. equality in illegality.
4. Along with the present Special Appeal, the
appellants placed on record a document claimed to be
the response received under the Right to Information
Act. On the basis of the said response dated
06.09.2022, the appellants claimed that the area, where
the building was raised, is not falling in the Green Belt.
When this Appeal was taken up by this Court on
15.11.2022, Mr. Sandeep Kothari, the learned counsel
for respondent no. 3, appeared on advance notice, and
stated that the alleged queries, raised under the Right to
Information Act, as well as the alleged reply thereto,
were doubtful. It was pointed out that the alleged reply
was claimed to be issued by the Office of the Nainital
Lake Region Special Area Development Authority, which
is not even the nomenclature used by the respondent-
authority. Moreover, the number inscribed on the
document was 75/2009, and the date of the document
had been put in hand.
5. We, therefore, directed the appellants to place
on record the original of the said document, along with
an additional affidavit. The appellants filed a
supplementary affidavit in response to our direction,
placing on record what they claim to be the originals of
the RTI query raised by them on 23.08.2022, and the
alleged original of the response dated 06.09.2022, along
with the postal envelope. On 21.11.2022, learned
counsel for respondent no. 3, on instructions, stated that
not only the alleged response dated 06.09.2022 was a
forged and fabricated document, but even the postal
envelope had been forged and fabricated. He desired to
file reply to deal with the said aspect. One week's time
was granted for the said purpose. The relevant records/
registers of the respondent were also directed to be kept
available for the perusal of the Court, and the matter
was adjourned to 30.11.2022.
6. The respondent no. 3 then filed its affidavit in
terms of the aforesaid order, and the appellants sought
time to respond to the said affidavit, which too has been
filed. In paragraph nos. 6 to 12 of the affidavit filed by
Shri Pankaj Kumar Upadhayay, the Secretary, District
Level Development Authority, Nainital, he states as
follows :-
"6. That it is submitted that the aforesaid document
relied upon by the appellants dated 06.09.2022
has been perused by the deponent and the
signature made thereon are not the signature of
the deponent being Secretary of the
Development Authority and hence the aforesaid
document dated 06.09.2022 is a forged
document.
7. That it is submitted that for the last several
years the office has never addressed itself as
Nainital Lake Region Special Development
Authority, inasmuch as, there is a creation of
the Development Authority and now it is termed
as District Level Development Authority Nainital
and hence the nomenclature of the office used
makes the entire document doubtful and further
the manner in which the reply has been
submitted makes the contents of the aforesaid
document doubtful.
8. That it is further submitted that the appellants
have submitted an application on 23.08.2022
under Right to Information Act which was duly
responded by the office on 03.11.2022 and was
received by the representative of the appellants
namely Nazma on 07.11.2022 and hence at the
time of filing the supplementary affidavit on
17.11.2022 the appellants were fully aware that
the aforesaid document is not a document
provided in response to the communication
dated 23.08.2022. True copy of the letter dated
03.11.2022 is being filed herewith and marked
as Annexure No. - 1 to this objection/
affidavit.
9. That it is further submitted that it is a matter of
co-incidence that no registered letter was issued
from the office of District Level Development
Authority Nainital on 14.09.2022 the date on
which the alleged postal receipt has been
dispatched. True copy of the dispatch register of
registered letters is being filed herewith and
marked as Annexure No.- 2 to this
objection/affidavit.
10. That further the dispatch register of 06.09.2022
further suggests that no such letter has been
issued from the office of the District Level
Development Authority Nainital to the
appellants. True and typed copy of the record /
part of the aforesaid dispatch register is being
filed herewith and marked as Annexure No. -3
to this affidavit.
11. That it is further submitted herein that with the
sense of responsibility after perusing the
documents and further making inspection of the
records of the District Level Development
Authority Nainital, it is absolutely clear that the
alleged letter of 06.09.2022 is a forged one.
Further no such letter has been issued on
14.09.2022 through registered letter duly
dispatched from Nainital Kachhari Post Office by
the office of District Level Development
Authority Nainital.
12. That since in order to obtain the orders from the
Hon'ble Court and to mislead the Hon'ble Court
the forged documents have been placed and
hence the Hon'ble Court may take cognizance of
the issue and take appropriate action which the
Hon'ble Court may deem fit proper in the facts
and circumstances of the case."
7. The respondent no. 3 placed on record
supporting documents to support their aforesaid
averments.
8. In the rejoinder filed by the appellants, the
appellants claim that other applications, under the Right
to Information Act, had similar seal and signatures.
Reliance is also placed on other applications, under the
Right to Information Act, to claim that same stamp,
bearing the same nomenclature - as was used by
respondent no. 3 in 2017, is still in use.
9. Mr. Sandeep Kothari states that he has written
instructions to state that even these documents are
forged and fabricated, and no such applications, under
the Right to Information Act, were ever received, which
forms the basis of the forged and fabricated response
placed on record, alongwith the rejoinder.
10. We have heard the learned counsels, and
considered their rival submissions.
11. It does not stand to reason that respondent
no. 3 would use its stationery, which is about 5 years
old, while sending response to the alleged queries raised
by the appellants in the year 2022. Even the document
filed by the appellants with the rejoinder - claiming the
same to be the response received by others under the
Right to Information Act, is not on the same stationery,
on which the appellants claim to have received their
response. The affidavit has been filed on behalf of
respondent no. 3 by its responsible officer - Shri Pankaj
Kumar Upadhayay, the Secretary, District Level
Development Authority, Nainital, and we have no reason
to not accept the same.
12. In the light of the aforesaid, we are of the
view that the appellants are not entitled to any relief.
Even on merits, it is clear that the appellants have
raised construction unauthorizedly, without the sanction
of the authority, on an area, apparently, which lies in
the Green Belt.
13. Accordingly, we dismiss the present Special
Appeal, with costs quantified at Rs. 50,000/- to be
deposited by the appellants with the Uttarakhand State
Legal Services Authority. The said funds shall be utilized
by the said authority for the purpose of mediation.
14. We also direct the Registrar General of this
Court to file an appropriate complaint before the
concerned Court for filing of forged and fabricated
documents in the Court. It goes without saying that the
said complaint shall be examined on its own merits by
the concerned Court, in accordance with law.
15. Since we have examined the Special Appeal
on merits, we are not going into the aspect of delay.
16. Consequently, pending applications, if any,
also stand disposed of.
________________
VIPIN SANGHI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dt: 13th March, 2023
Rahul
