WPMS/1555/2007
2023 Latest Caselaw 1214 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL


         THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                 AND
              THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL



             WRIT PETITION (M/S) NO. 1555 OF 2007


                              2ND MAY, 2023

Between:

Anand Thapli                                ......          Petitioner


and


State of U.P. & others                      ......         Respondents

Counsel for the petitioner : Mr. Siddhartha Sah, learned counsel

Counsel for the respondents : Mr. I.D. Paliwal, learned Standing Counsel for the State of U.P. /

: Ms. Puja Banga, learned counsel

: Mr. Pradeep Joshi, learned Additional Chief Standing Counsel for the State of Uttarakhand /

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

We have heard learned counsels, and proceed

to dispose of the writ petition.

2) The petitioner has preferred the present writ

petition to seek the following reliefs :

"i) Declare the notification 225/XI-5-84-19(1)-DA-84 (Annexure No. 2) as ultra-vires and unconstitutional.

ii) Issue a writ of prohibition and / or a writ in the nature of prohibition or any other appropriate writ / order / direction, quashing and setting aside the notices dated 17th June, 2002 and 26th December, 2002 (Annexure No. 6 and 9) and the composite order dated 20th August, 2004 (Annexure No. 13).

iii) Stay the order and further proceeding pursuant to the order dated 20th August, 2004 (Annexure No.

13) during the pendency and final disposal of this petition."

3) The Notification No. 225/XI-5-84-19(1)-DA-

84, which is challenged by the petitioner as ultra vires

and unconstitutional, in so far as it is relevant, reads as

follows:

"In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of Notification No. 225/XI-5-84-19(1)-DA- 84, dated October 29, 1984 :

Noti. No. 225/XI-5-84-19(1)-DA-84

Dated Lucknow, October 29, 1984

Whereas in the opinion of the State Government the following Mussoorie-Dehra Dun area of District Dehra Dun required to be developed in a planned manner;

Now, therefore, in exercise of the powers under Section 3 of the Uttar Pradesh Urban Planning and Development Act, 1973 (President's Act No. 11 of 1973), as re-enacted and amended by the Uttar Pradesh President's Act (Re-enactment with Modifications) Act, 1974 (U.P. Act No. 30 of 1974), the Governor is pleased to declare, with effect from the date of publication of this notification in the Gazette, the following area to be the Mussoorie-Dehra Dun Development Area.

AREA

Area falling within the limits of Mussoorie Municipal Board, Dehra Dun regulated area under which the Municipal Board, Dehra Dun and area of the following 185 Revenue villages as per list given below of Mussoorie-Dehra Dun, District Dehra Dun situated around it are included, but excluding, cantonment area and land owned, requisitioned or taken on lease by the Central Government for the purpose of any Naval, Army or Air Force Authority."

4) The area notified includes the village of the

petitioner, i.e., Kuarkuli Bhatta, which is found at serial

No. 161 of the tabulation containing the names of the

towns / villages, which have been notified.

5) It appears that the petitioner sought to carry

out development on his land, and for that purpose the

petitioner approached the Gram Panchayat, which

granted permission to the petitioner to carry out

development vide its communication dated 06.06.2004.

The permission was granted by the Gram Panchayat on

the basis of a communication received from the

Assistant Engineer of the Mussoorie Dehradun

Development Authority (MDDA) to the effect, that the

land in the village fell beyond the jurisdiction of the

MDDA. The petitioner claims that he carried out the

development in pursuance of the said permission

granted to him by the Gram Panchayat. Subsequently,

he was issued a show cause notice on 26.12.2002,

requiring him to show cause - as to why the

development carried out by him in contravention of

Section 14 of the U.P. Urban Planning and Development

Act, 1973, should not be demolished. The show cause

notice resulted in a demolition order being passed

against the petitioner dated 20.08.2004.

6) The challenge to the constitutionality of the

aforesaid notification is premised on the submission that

Chapter IX was introduced in the Constitution on the

subject of Panchayats by the Constitution (Seventy-third

Amendment) Act, 1992 w.e.f. 24.04.1993. Article 243G

states that - "subject to the provisions of this

Constitution, the Legislature of a State may, by law,

endow the Panchayats with such powers and authority

and may be necessary to enable them to function as

institutions of self-government and such law may

contain provisions for the devolution of powers and

responsibilities upon Panchayats at the appropriate level,

subject to such conditions as may be specified therein,

with respect to, inter alia, the preparation of plans for

economic development and social justice, and

implementation of schemes for economic development

and social justice as may be entrusted to them including

those in relation to the matters listed in the Eleventh

Schedule.

7) Mr. Sah submits that the Eleventh Schedule to

the Constitution enlists "rural housing" at serial No. 10.

He submits that as a consequence of the introduction of

the aforesaid provision in the Constitution, the Uttar

Pradesh Panchayat Raj Act, 1947, was amended by U.P.

Act No. 9 of 1994, which, inter alia, laid down the

function of the Gram Panchayats in Section 15. Section

15 of the Uttar Pradesh Panchayat Raj Act, 1974, as

amended, in so far as it is relevant, reads as follows :

"Subject to such conditions as may be specified by the State Government, from time to time, a Gram Panchayat shall perform the following functions, namely, -

ii) Land development, land reform implementation, land consolidation and soil conservation

(x) Rural housing :

                 (a)    Implementation       of   rural        housing
                        programmes.

                 (b)    Distributing         house-sites     and
                        maintenance       of records relating to
                        them."


8)        The submission of Mr. Sah is that, since the

Panchayats have now been endowed by power and

authority to enable them to function as institutions of

self-government, and have been vested with powers and

responsibilities, inter alia, rural housing, it is the Gram

Panchayats which alone are empowered to grant

sanction or permission for development of rural housing.

Consequently, the power vested in the State by virtue of

Section 3 of the U.P. Urban Planning and development

Act, 1973, to declare an area as a development area,

cannot be read to mean the declaration of a rural area,

which falls within the jurisdiction of Gram Panchayats, as

a development area.

9) Section 3 of the U.P. Urban Planning and

Development Act, 1973, in pursuance of which the

impugned notification has been issued, reads as follows :

"3. Declaration of development areas. -If in the opinion of the State Government any area within the

State requires to be developed according to plan it may, by notification in the Gazette declare the area to be a development area."

10) We have considered the aforesaid submission

of Mr. Sah. The U.P. Urban Planning and Development

Act, 1973, is an Act - "to provide for the development of

certain areas of Uttar Pradesh according to plan and for

matters ancillary thereto". The prefatory note, reasons

for the enactment of the U.P. Urban Planning and

Development Act, 1973, inter alia, reads - "In the

developing areas of the State of Uttar Pradesh the

problems of town planning and Urban Development need

to be tackled resolutely. The existing local bodies and

other authorities in spite of their best efforts have not

been able to cope with these problems to the desired

extent. In order to bring about improvement in this

situation, the State Government considered it advisable

that in such developing areas, Development Authorities

patterned on the Delhi Development Authority be

established. As the State Government was of the view

that the Urban Development and planning work in the

State had already been delayed it was felt necessary to

provide for early establishment of such authorities."

11) The scheme of the U.P. Urban Planning and

Development Act, 1973, is that the State Government

may declare an area as a development area; the State

Government may constitute an authority, called the

Development Authority of any development area; the

State Government shall prepare master plan and zonal

development plan for a development area (Sections 8

and 9); and, with a view to ensure that haphazard or

unplanned development does not take place, Section 14

of the Act prohibits the undertaking of development, in a

development area, unless permission for such

development has been obtained in writing from the Vice-

Chairman of the Development Authority in accordance

with the provisions of the Act.

12) In so far as it is relevant, Section 14 reads as

follows :

"14. Development of land in the developed area.

-(1) After the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government) unless permission for such development has been obtained in writing from the Vice-Chairman in accordance with the provisions of this Act.

(2) After the coming into operation of any of the plans in any development area no development shall be

undertaken or carried out or continued in that area unless such development is also in accordance with such plans."

13) Having examined the submission of Mr. Sah,

we are of the view, that there is no merit in the same.

The introduction of Chapter IX in the Constitution, and

the incorporation of Article 243G read with the Eleventh

Schedule, no doubt, authorizes the Gram Panchayats to

discharge certain responsibilities and functions, inter

alia, in relation to rural housing. The introduction of

Section 15 in the U.P. Panchayat Raj Act, 1947,

empowers the Gram Panchayat to perform the enlisted

functions which include - "land development, land

reform implementation, land consolidation and soil

conservation", and "rural housing : (a) implementation

of rural housing programmes (b) distributing house-sites

and maintenance of records relating to them."

14) First and foremost, the aforesaid functions

entrusted to the Gram Panchayat do not in turn deal

with the aspect of development of the rural housing.

They deal with land development which, it appears to us,

would be different from development of rural housing.

Rural housing has been enlisted as a separate entry in

Clause (x). The aspects of rural housing in respect

whereof the Gram Panchayat has been vested with

authority relates to "implementation of rural housing

programmes", and "distributing house-sites and

maintenance of records relating to them". Per se, the

same does not deal with the function of authorizing

development of rural housing. In any event of the

matter, even if, the said entries were to be construed

broadly to mean, that the Gram Panchayat has been

entrusted with the function, and vested with the

authority to grant sanction / permission of raising of

rural housing, even then, to our mind, the same does

not take away the power of the State Government under

Section 3 of the U.P. Urban Planning and Development

Act, 1973, to declare an area as a development area,

which may include rural housing falling within the

jurisdiction of Gram Panchayats, which would in turn,

lead to application of, inter alia, Section 14 of the U.P.

Urban Planning and Development Act, 1973, over each

parcel of land falling in the development area. In our

view, the two enactments, and the authority vested in

the State Government, on the one hand, by virtue of the

U.P. Urban Planning and Development Act, 1973, and

the Gram Panchayat, on the other hand, by virtue of

Section 15 of the U.P. Panchayat Raj Act, 1947, are not

at cross-purposes and can be harmonized. Therefore, in

respect of an area, which is declared as a development

area, the development of such area, even if, it falls

within the jurisdiction of a Gram Panchayat, would be

governed by the provisions of the U.P. Urban Planning

and Development Act, 1973, but in respect of areas

which are not declared as development areas, the Gram

Panchayat concerned would have the jurisdiction to

grant permission / sanction, inter alia, in respect of rural

housing.

15) So far as the submissions of Mr. Sah premised

on the permission granted to the petitioner by the Gram

Panchayat on 06.06.2004 is concerned, in our view, the

same is neither here, nor there, for the reason, that

there is no estoppel against the statute. If the land in

question fell within a development area, by force of the

provisions of the U.P. Urban Planning and Development

Act, 1973, particularly, Section 14 thereof, it was

necessary for the petitioner to obtain prior permission /

sanction before raising any development over the land

from the Vice-Chairman of the Development Authority.

16) In the light of the aforesaid, we dismiss this

petition. However, it shall be open to the petitioner to

invoke the appellate remedy available to the petitioner

under Section 27 of the U.P. Urban Planning and

Development Act, 1973. Since, the present petition has

remained pending from the time of its filing in the year

2004, and this Court had passed interim orders in favour

of the petitioner, which were operating through out, the

period spent in this Court in pursuing the present

petition shall not come in way of the petitioner in

computing the period of limitation in preferring the

appeal.

________________ VIPIN SANGHI, C.J.

________________ RAKESH THAPLIYAL, J.

Dt: 2nd MAY, 2023 Negi