Bikram Singh Pundir & Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Bhuwan Bhatt, learned counsel for the appellants, Mr. B.S. Parihaar, learned Standing Counsel for the State of Uttarakhand, Mr. Rahul Consul, learned counsel for the Mussoorie Dehradun Development Authority and Mr. Rakesh Thapliyal, learned counsel for the seventh respondent and, with their consent, the appeal is disposed of at the stage of admission.

The appellant-writ petitioner filed the present writ petition seeking a writ in the nature of certiorari to quash the impugned Resolution on Agenda No.1 and supplementary Agenda No.1, passed in the 94th Board Meeting of the Mussoorie Dehradun Development Authority dated 28.08.2018; they should ensure that the seventh respondent, after demolishing of the unauthorized construction, used the said flat only for residential purposes as per the undertaking given by way of an affidavit dated 21.07.2017; and a writ of mandamus directing the removal of encroachment, over the public lane, made by the seventh respondent.

The learned Single Judge has, in his order under appeal dated 03.05.2019, observed that it was incumbent on part of the writ petitioner to have placed the Government Order dated 28.04.1998 on record, before the Court, to consider the propriety of the said order; Clause 1 of the Government Order dated 20.04.1998 provided that a person, who had been allotted land and if he intended to get allotment of additional land, would be entitled for the same only subject to 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 additional allotment is made; clause 2 of the said Government Order contemplated the time frame within which action had to be taken in relation to the application which was submitted for regularization of the possession of adjoining allotted property; the Government Order dated 20.04.1998 still subsisted, and was surviving and enforceable; the appellant-writ petitioner himself was an encroacher; action had been initiated against him by Development Authority; the appellant-writ-petitioner had not disclosed this fact in this writ petition; proceedings had been initiated against him, under Section 27 of the Act, for raising an unauthorised construction without getting a proper sanction under Section 14 of the Act of 1973; a decision was required to be taken by the Government in terms of clause (1) of the Government Order dated 28.04.1998; the appellant-writ petitioner was not a person aggrieved; it was exclusively within the domain of the Development Authority to consider the propriety of the implications which were over flowing from the Government Order dated 20.04.1998; in terms of the order passed by this Court dated 19.02.2018, the writ-petitioner had already demolished the portion held to be unauthorised; and since the matter was still pending before the Government, the writ petition was premature.

The dispute, in this writ petition, relates to a small portion of land falling between the plots of the appellant-writ petitioner and the seventh respondent. In terms of the Government Order dated 20.04.1998, the said plot can be allotted to any person who applies for the same and on payment of the prevailing circle rate. The seventh respondent submitted an application which has been approved by Mussoorie Dehradun Development Authority. While the seventh respondent claims that, since he is an applicant, he should be granted the said plot on payment of the circle rate, the appellant-writ petitioner contends otherwise, and submits that conferment of such benefits on the seventh respondent is illegal.

Save, in cases where alienation of government land is for a public purpose, or is in furtherance of the Directive Principles of the State Policy in Part-IV of the Constitution of India, such exercise of alienation of government land can only be undertaken for maximisation of the revenues of the State. A fair and transparent mode of ensuring that the State maximises its revenues, is for alienation of government lands by way of a public auction where the land would be alienated in favour of the highest bidder, thereby enabling the State to maximise its revenues. A circle rate is prescribed merely for the purpose of registration, and judicial notice can be taken of the fact that, invariably, the market rate prevailing in the locality is far higher than the circle rate.

Since the appellant-writ petitioner is also interested in purchasing this small plot of land, suffice it to direct the respondents not to alienate the land, in terms of the Government Order, but to put it to public auction with a view to maximise its revenues. Needless to state that both the appellant-writ petitioner and the seventh respondent shall be entitled to participate in such an auction, and bid for the said plot. It would suffice, in furtherance of larger public interest, to direct that the minimum bid price, which shall be fixed for the auction, shall be the circle rate, below which the subject piece of land shall not be alienated. Following the aforesaid procedure, the Mussoorie Dehradun Development Authority would be able to maximise its revenues. The order under appeal is modified accordingly.

With regards the allegation that the appellant-writ petitioner had himself violated the norms prescribed for raising construction, for which a notice had been issued to him by the Mussoorie Dehradun Development Authority, Mr. Bhuwan Bhatt, learned counsel for the appellant-writ petitioner, would submit that, to the extent construction raised by the appellant-writ petitioner had projected on to neighbouring lands, the said projections had already been demolished by him; for the other construction raised by him, without abstaining permission from the Mussoorie Dehradun Development Authority, a compounding application had already been filed along with the prescribed compounding fees; and in case permission for compounding is not accorded later, the appellant-writ petitioner would remove the unauthorized construction.

While fairly stating that the appellant-writ petitioner had submitted an application for compounding, along with the prescribed fees, Mr. Rahul Consul, learned Counsel for the Mussoorie Dehradun Development Authority, would submit that, in case the unauthorized construction is not compounded, the Mussoorie Dehradun Development Authority would then demolish the unauthorized construction. Suffice it, in such circumstances, to direct the Mussoorie Dehradun Development Authority to consider the compounding application, submitted by the appellant-writ petitioner, within four weeks from today. In case the Mussoorie Dehradun Development Authority, for reasons to be recorded in writing, is satisfied that the unauthorized construction, raised by the appellant-writ petitioner, is not compoundable, it shall then take action forthwith to demolish the unauthorized construction. The Mussoorie Dehradun Development Authority shall also ascertain whether the projections, over the neighbouring lands have been removed by the appellant-writ petitioner and, if he has not, to then take action forthwith for its removal.

Yet another complaint made by the appellant-writ petitioner is that the seventh respondent is carrying on commercial activities, though he had given an undertaking to the Mussoorie Dehradun Development Authority that he would use the subject plot only for residential purposes, and not for carrying out commercial activities.

While fairly stating that seventh respondent had earlier given an undertaking, Mr. Rakesh Thapliyal, learned counsel appearing on behalf of seventh respondent, would submit that the permission now sought by the seventh respondent, was strictly in terms of the building by-laws; and it is always open to the Mussoorie Dehradun Development Authority to accord permission with the approval of the State Government. Since the matter is still pending consideration before the State Government, we see no reason to interfere at this stage, for the State Government may, or may not, accord permission.

Suffice it, in such circumstances, to leave it open to the appellant-writ petitioner, in case permission is granted later by the State Government, to question the grant of permission in appropriate legal proceedings. With the modification made hereinabove, the Special Appeal stands disposed of accordingly. The agenda item No.1 of the Mussoorie Dehradun Development Authority made on 28.08.2018, whereby the neighbouring land was allotted to the seventh respondent, is quashed. The Special Appeal is disposed of. However, in the circumstances, without costs.