Alok Kumar Pandey vs State of Uttarakhand and Others

Before proceeding with the matter, learned Counsel for respondent No. 4 insisted that the proceedings in this case have been initiated for extraneous considerations, as the petitioner in this case is a non-existing person. He also asserted that the petitioner is not interested in any public issue, and that, the instant petition had been filed only to harass respondent No. 4. He further stated that the instant writ petition was wholly misconceived, on account of the fact that, the solitary basis on which the instant writ petition was filed, was information obtained by the petitioner from one Shivam Sharma under the Right to Information Act, 2005. It is pointed out that the litigation between the aforesaid Shivam Sharma and respondent No. 4 is pending. It is, therefore, suggested that the instant Public Interest Litigation, is motivated at the hands of the aforesaid Shivam Sharma.

We have considered the issue of maintainability of the instant writ petition on the basis of the submissions advanced by the learned Counsel for respondent No. 4, as have been noticed in the foregoing paragraph. Learned Counsel for the petitioner, on the other hand, has invited our attention to the fact that, the petitioner is not a nonexisting person (as has been submitted by learned Counsel representing respondent No. 4) inasmuch as, in furtherance of a direction issued by this Court, the petitioner had actually appeared before this Court on 18.6.2009. We have perused the motion Bench order dated 18.6.2009. The same affirms the factual position expressed by the petitioner.

The next contention advanced by the learned Counsel for respondent No. 4 to the effect that the instant litigation is motivated, in our view, needs no consideration whatsoever, specially after the Secretary, Haridwar Development Authority by his order dated 19.12.2009 has passed an order concluding that respondent No. 4 had made unauthorised constructions, some of which were compoundable, whereas some were not compoundable. Through the aforesaid order dated 19.12.2009 a direction has been issued to respondent No. 4 requiring him to demolish the unauthorised construction. In the background of the factual position noticed hereinabove, it is also necessary to refer to the judgment rendered by the Allahabad High Court in Ashok Kumar Tumberia v. Hardwar Development Authority through its Vice-Chairman, Hardwar and Anr. 1997 (1) A.W.C. 421, which was filed by Respondent No. 4 before the High Court at Allahabad wherein in paragraph 8, a Division Bench of the High Court at Allahabad, inter alia, observed as under:

In the circumstances, the Court considers it appropriate that this entire matter shall stand remanded to the local administration. The Court is one requiring the District Magistrate/Collector, Hardwar to make an enquiry into this matter and first find out where exactly is the location of the constructions made by the petitioner, whether it is on the road side, side walk, pavement or protected space of set-backs? If the answer to this enquiry is in the affirmative, then these constructions have to go. Further, the District Magistrate/Collector, Hardwar will cause an enquiry to be made how the constructions were completed after the notice of 30.3.1993 and despite the fact that the petitioner was on a notice to desist from constructions. Whoever were embroiled in this collusion, appropriate action shall be considered and taken by the District Magistrate/Collector, Hardwar. The District Magistrate/Collector, Hardwar, will also ensure that no further constructions are carried out by the petitioner nor any finishing work undertaken nor the building is let out while this enquiry is in progress.

It is, therefore, prima facie, apparent that respondent No. 4 does not have much respect for the law. Not only now but on earlier occasions also, there have been allegations against him that he had effected unauthorised constructions. The factual position in respect of the present controversy has been affirmed by the order passed by the Secretary, Hardwar Development Authority dated 19.12.2009 (Annexure-A). It is, therefore, not possible for us to accept the submission of the learned Counsel representing respondent No. 4, that the instant writ petition deserves to be dismissed summarily. The petitioner having raised serious allegations against respondent No. 4 which stand affirmed, as of now, it will be unfair to shut out the present litigation, merely because of the above noted technical issues canvassed on behalf of respondent No. 4. Respondent No. 4 will obviously have liberty to avail of all the remedies in accordance with law. But then, if he is guilty of unauthorised construction, in violation of the provisions of law, he must most certainly be persuaded to demolish the same.

In furtherance of the directions issued by this Court requiring the disposal of the proceedings initiated by respondent No. 4 under the provisions of the Uttar Pradesh Urban Planning and Development Act, 1973, an order dated 19.12.2009 has been passed. A photo copy of the aforesaid order has been handed over to us in the Court today. The same has been marked by us as Annexure -A. Annexure-A is taken on record subject to all just exceptions. A perusal of Annexure-A reveals that respondent No. 4 was required to make certain deposits as compounding charges in respect of building violations committed by him, which are compoundable. As against non-compoundable construction, a direction was issued to him to demolish the same.

Learned Counsel for respondent No. 4 states that respondent No. 4 has assailed the order dated 19.12.2009, passed by the Secretary, Haridwar Development Authority before the appellate authority i.e., Chairman of the Haridwar Development Authority, and that, it is not proper to require respondent No. 4 to demolish the alleged unauthorised construction till the issue attains finality.

In the sequence of facts noticed hereinabove, we are of the view that the proceedings of this case should be deferred to await the decision of the appellate authority. Accordingly, the proceedings of this case are deferred to for one and half month. It would be appreciated if the appellate authority after affording an opportunity to respondent No. 4 takes a final decision in accordance with law within one month from today.

List again on 17.4.20 10.

A copy of this order, under the signatures of the Bench Secretary attached to this Court, shall be furnished to Ms. Puja Banga, Advocate representing respondent No. 2 for onwards transmission to the appellate authority.