Bikram Singh Pundir vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

It is settled law that a person who invokes the writ jurisdiction either under Article 226 or 227 of the Constitution of India, has had to approach the Court with clean hands. In the present case the grievance, which has been raised by the petitioner in the present writ petition, is to the effect that as a consequence of passing of the impugned agenda no. 1, which is based upon the Government Order dated 20.04.1998, which in its paragraph no. 1 provides that the committee can allot a land on the basis of the existing rate of land after getting an appropriate approval from the competent authority. Later on, a supplementary agenda was also passed by the Board of the Development Authority, which reads as under:

"अनुपूरक विषय क्रमांक 1:- मानचित्र पत्रावली संख्या-सी-0077/8-19 श्री राजेन्द्र सिंह ढ़िल्लो पुत्र स्व0 सम्पत्ति संख्या-एच.आईजी-1 भूतल व प्रथम तल सलि इन्दिरा पुरम फेस-प्रथम जी0एम0एस0रोड देहरादून पर कॉमर्शियल निर्माण की स्वीकृति के सम्बन्ध में।

प्रस्ताव पर चर्चा के उपरान्त निर्णय लिया गया कि प्रश्नगत भूखण्ड स्वीकृति ले-आउट में आवासीय प्रदर्शित है। आवासीय भूखण्ड पर व्यावसायिक भवन की स्वीकृति के सम्बन्ध में प्रकरण शासन को सन्दर्भित किया जाये। शासन के निर्देशानुसार प्राधिकरण स्तर से कार्यवाही सुनिश्चित की जाये।"

In pursuance to the said principal agenda no. 1, which reads as under:

विषय क्रमांक 1:- प्राधिकरण की इन्दिरापुरम फेज प्रथम आवासीय योजनान्तर्गत आवंटित एच0आई0जी0-1 भवन संख्या 117 के बराबर में रिक्त भूमि आवंटन के सम्बन्ध में।

प्रस्ताव पर विस्तृत विचार विमर्श उपरान्त सम्पत्ति अनुभाग द्वारा अवगत कराया गया कि प्रश्नगत भूमि सार्वजनिक उपयोग की नही है एवं अन्य किसी उपयोग में भी नहीं आ रही है। अतः शासनादेश दिनांक 20 अप्रैल 1998 के प्रस्तर-1 के क्रम में सम्बन्धित आवंटी को वर्तमान दर पर आवंटन किये जाने पर अनुमोदन प्रदान किया गया।"

It was based on the implications and the directions provided by the Government Order dated 20.04.1998, whereby, the MDDA has rather only recommended to the State Government to take a decision with regards to the conversion of the user of residential area into a commercial use and also with regards to the sale/allotment of the property as provided in the principal Agenda No. 94 as passed by the MDDA on 28.08.2018.

The grievance of the petitioner is that the said agenda was nothing but a deliberate and intentional act of the respondents to override the effect of the judgment, which was rendered by this Court in the writ petition preferred by the petitioner earlier against the order dated 07.03.2017, passed by the respondents, by virtue of which the permission which was granted by the Chairman of the MDDA for getting the construction compounded and for the said purpose he was given the liberty to submit a compounding map.

The learned Single Judge while considering the argument extended by the petitioner to the effect that the residential area as allotted by the MDDA, could not be permitted to be converted or altered to be used for commercial purposes as per terms of allotment and the bylaws of the MDDA, and also after considering the pleading to the effect that the nature of unauthorized construction, which has been raised, is not compoundable as per the bylaws framed under Section 57 of the Act of 1973, had allowed the writ petition and the permission of compounding as granted on 07.03.2017 by the MDDA was set aside. Simultaneously, a direction was also issued that MDDA will ensure that the portion which has been held to be non compoundable is demolished forthwith. It is subsequent thereto it is said that the respondent no. 5, himself has demolished the said portion of unauthorized structure and submitted the report to the MDDA vide his letter dated 28.05.2018 on which an endorsement was made by the Vice Chairman of the MDDA to immediately hold an inspection and submit a report with regards to the facts detailed by the petitioner in his letter dated 28.05.2018.

The argument of the learned counsel for the petitioner is that the agenda as passed by the MDDA on 28.08.2018, was a deliberate attempt to override the effect of the judgment dated 19.02.2018 as rendered by this Court.

The said argument though attractive could have only be sustained, when at the time when the permission was granted by the order dated 07.03.2017, which was under consideration before the learned Single Judge in the earlier writ petition, the Court was made aware about the bylaws, which prevailed at that time with the MDDA and had considered the extent of compoundability of the accommodation, be that as it may. At this stage this Court is only confined to and is supposed to answer the relief, which has been prayed for by the petitioner, in the writ petition to the following effect:

"(a) Issue a writ, order or direction in the nature of certiorari quashing the Impugned Resolution on Agenda No. 1 and Supplementary Agenda No. 1 passed in the 94th Board Meeting of Mussoorie Dehradun Development Authority dated 28.08.2018 and the decision taken thereon (as contained in Annexure No. 1 to the writ petition)

(b) Issue a writ, order or direction in the nature of mandamus directing the respondent nos. 3, 4 & 5 to ensure that the respondent no. 7 after demolition of the unauthorized construction, uses the said Flats only for residential purpose as the undertaking by way of affidavit dated 21.07.2017 (Annexure CA-8 to the counter affidavit filed on behalf of respondent nos. 2, 3 and 4 (Respondent Nos. 3, 4 and 5 herein) in Writ Petition (M/S) No. 1383 of 2017) given by the Respondent No. 7 before the Respondent No. 3.

(c) Issue a writ, order or direction in the nature of mandamus directing removal of encroadhment over the public lane made by the Respondent No. 7.

(d) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

In all fairness, it is expected that when the agenda under question itself was foundationed on the implications of the Government Order dated 28.04.1998, it was incumbent on part of the petitioner to have simultaneously placed the said Government Order on record before this Court so as to enable the Court to consider the propriety of the impugned order in question. The said Government Order dated 20.04.1998 has been placed on record by the MDDA in their counter affidavit, which finds place on record as Annexure No.7. The said Government Order as issued on 20.04.1998 in its clause 1 it provides that a person who has been allotted with the land and if he intends to get an allotment of an additional land, he would be entitled for the same only subject to the payment of the value of the property, which obviously was based on the circle rate, which was prevailing at the relevant point of time, when the application for an additional allotment is made. In response to the argument extended by the learned counsel for the respondent in the light of the provisions contained under the said Government Order dated 20.04.1998 in particular clause-1 of it, which was issued on 20.04.1998 it was after considering the provisions contained under Section 41(1) of the U.P. Urban Planning and Development Act, 1973, it has been argued by the learned counsel for the respondent that clause 1, of the said Government Order cannot be read in isolation, rather clause-2 would also come into play, which according to his interpretation is that the said Government Order issued on 20.04.1998 only had a life of six months and thereafter it had became redundant and as such based on the said Government Order of 20.04.1998, no recommendation as impugned in the writ petition could have been made by the MDDA.

After having considered the language used in clause 2 of the Government Order dated 20.04.1998, which is being interpreted by the petitioner as if its life is for six months only, this Court is in absolute disagreement with the argument as extended by the counsel for the petitioner. Rather to the contrary clause 2 only contemplates and provides the time frame within which an action has to be taken in relation to the application which is submitted for regularization of the possession of an adjoining allotted property as contemplated under sub clause 1 of the Government Order dated 20.04.1998. Hence, it cannot be said that the said Government Order has lost its life. Even it has been argued by the learned counsel for the MDDA that the Government Order as issued on 20.04.1998 still subsists and is surviving and enforceable under which the action has been taken.

On the other hand, one glaring fact which has been argued by the learned counsel for respondent no. 7, is to the effect that the petitioner himself happens to be an encroacher and as against him an action has already been taken by the Development Authority and the proceedings are pending against him, which is reflected from the pleadings which has been raised in the counter affidavit of the private respondent no. 7 himself.

In support of his contention the pleading has been raised by the respondent no. 7 in paragraph 5 of the counter affidavit where a reference is made to the show cause notice dated 27.05.2018, as issued against him. In the entire body of the writ petition the petitioner has not disclosed this fact that MDDA has already initiated proceedings against him and notice has been issued on 20.05.2018 under Section 27 of the Act for raising an unauthorized construction without getting a proper sanction under Section 14 of the Act of 1973. This Court is of the opinion that though this fact may not be having any bearing as far as the challenge to the resolution is concerned, but the propriety demanded that a person against whom the MDDA has already proceeded by issuance of a notice under Section 27(1), it was expected that he ought to have disclosed this fact in the pleadings of the writ petition. Even otherwise also as already held that looking to the clause 1 & 2 of the Government Order since the Government Order still survives in pursuance to which the impugned action of issuance of the agenda on 20.08.2018 has taken place, in fact, it is only a reference which has been made after the decision taken by the Board to the State Government for an appropriate action/approval on the recommendations of the Board.

The State Government is yet ceased with the matter and no decision as of now has been taken by the State. Having regard to the implications of the Government Order dated 20.04.1998 and the intention expressed in the supplementary agenda. It is exclusively a decision which is now awaited decision to be taken by the State Government whether to proceed to grant permission under sub-clause (1) of the Government Order dated 28.04.1998 or to decline the same. As of now against the impugned agenda the petitioner who happens to be the neighbourer/complainant against the private respondent no. 7, who himself is facing the proceedings under Section 27, cannot at all be said to be an aggrieved person against the proposal extended by the supplementary agenda no. 1.

This Court is of the view that the reason behind it is that since under the Constitution as per provisions contained under Schedule 12 the entry 1, as framed under Article 243 (W) of the Constitution of India. It is exclusively within the domain of the Development Authority to consider the propriety of the implications which were flowing from the Government Order dated 20.04.1998.

Since the matter is still pending consideration before the State Government and no decision in pursuance to the agenda, has not yet been taken and also coupled with the fact that in pursuance to the directions given by the Coordinate Bench of this Court by the judgment dated 19.02.2018, the petitioner has already demolished the portion held out to be unauthorized. This Court at this stage is of the view that the writ petition is premature and could have a cause only when an action is taken by the State and takes a decision on the agenda which has been extended by the MDDA in the light of the provisions of the Government Order dated 20.04.1998.

Consequently, at this stage the Court declines to exercise its extraordinary powers as against the agenda, which is yet to attain its finality upon the decision to be taken by the State Government.