Inder Kumar Batta And Another vs Assistant Collector, In-Charge Sub Division / SDO, Dehraun And Others

Sharad Kumar Sharma, J

Though the records would reveal that the Writ Petition, in question, has got a chequered history, but, in a nutshell, the controversy, which is actually involved for consideration by this Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is confined only as against the impugned order dated 26.09.2012, which is under challenge in the present Writ Petition, it is to the effect that the order of cancellation of NOC passed by the Mukhya Nagar Adhikari, Nagar Nigam Dehradun on 26th September, 2012, at all, it is sustainable as per the requirement and procedure contemplated under law.

The factual backdrop of the case is that on a complaint being received by the Municipal Commissioner, i.e. respondent No. 1 with regard to a certain embargo being created by virtue of the implications of the provisions contained under Section 189 of the U.P. Z.A. & L.R. Act, in relation to a property, which is allegedly claimed to be the property belonging to Daulat Ram Public Trust, whether at all, there is any restriction in transfer of the property of Trust, which could be imposed in the light of the provisions contained under Section 92 of the C.P.C. or not, is absolutely an independent issue, which is to be decided in an independent proceeding to be agitated by the rival parties, at this stage, it is made clear by this Court that this Court is not dealing with the issue of effect of Section 189 of the U.P. Z.A. & L.R. Act viz-a-viz the provisions contained under Section 92 of the C.P.C..

It is contended that the Nagar Nigam has filed a complaint, which was registered as Case No. 1 of 2004-05 before the Court of Assistant Collector, In-charge, Sub Division / SDO, Dehradun, alleging thereof that with regard to the propriety of the proceedings of transfer of the Trust property and the consequential action being taken on the same, the Court of Assistant Collector while determining the issue has passed an order on 19th April, 2005, to the effect that as far as the land, in question, which is situated in village Majra, Pargana Kendriya Doon, District Dehradun, which is said to be belonging to the Daulat Ram Charitable Trust, it was disposed of with a direction to the Nagar Nigam that Nagar Nigam, may institute a separate proceeding under Section 189 of the U.P. Z.A. & L.R. Act and get the controversy decided by the competent Court. As far as the implication flowing from the order of the Assistant Collector dated 19th April, 2005, limiting the rights of the Nagar Nigam for getting the proceedings adjudicated under Section 189 of the U.P. ZA & LR Act before the competent Court, any observation or finding, which has been recorded herein in the order of Assistant Collector dated 19.04.2005, will not be taken to be an adverse to the finding recorded by the Assistant Collector for the probable proceedings under Section 189 of U.P. Z.A. & L.R. Act and the said direction or the liberty given to the Nagar Nigam for institution of the proceedings under Section 189 of the U.P. Z.A. & L.R. Act, it would be dealt with independently in an independent proceedings to be agitated by Nagar Nigam, if not done so.

On this observation, the counsel for the petitioners submits that on the basis of the aforesaid liberty granted by the Assistant Collector on 19.04.2005, the Nagar Nigam did initiate the proceedings under Section 189 of the Act, as would be apparent from Annexure 17 to the writ petition, which was registered as Case No. 1/2004-05, Nagar Nigam vs. Daulat Ram Trust. The said proceedings, according to the petitioners, has attained its finality because the same already stood dismissed by an order dated 03.09.2012 and according to the petitioner's pleading, the said order has been affirmed in the sense that the Nagar Nigam has got subsequently resorted to the proceedings before any superior Court against the decision dated 03.09.2012 as rendered under Section 189 of the U.P. Z.A. & L.R. Act. Yet again, this decision under Section 189 of the U.P. Z.A. & L.R. Act would not be creating any embargo as far as consideration of the present Writ Petition is concerned, which is based and dealing with altogether a different issue.

In fact, as per the pleadings, it reflects that the petitioner's wanted to develop the land and, consequently, they have sought an appropriate sanction by filing an application before the MDDA and as a consequence thereto of filing of an application under Sections 14 and 15 of the U.P. Urban Planning and Development Act, on the basis of the fact on record that petitioner claimed themselves to be mutated in pursuance to the orders passed by the competent Authorities on 26.08.1989, as against Khasra No. 603, having an area of 0.19 acres, which is contended by the petitioner that the same was exchanged with the permission of the Sub Divisional Officer as granted on 29.09.1989, in the proceedings under Section 161 of U.P. Z.A. & L.R. Act.

It is the case of the petitioner's that for the purposes of sanctioning of the lay out on the said exchanged land, and as per the demand raised by the MDDA, they have deposited a sum of Rs.21,28,921/- and, as a consequence thereto, the application under Sections 14 and 15 of U.P. Regulation of Building and Development Act, was considered by the MDDA and the same stood sanctioned on 03.10.2006. However, the said application was sanctioned by MDDA with the rider and a precondition as was imposed by the Development Authority that the sanction as accorded would be subject to a grant of "no objection certificate" by the Nagar Nigam. As a result thereto, the no objection certificate was granted by the Nagar Nigam for the purposes of sanction of map under Sections 14 and 15 of the U.P. Urban Planning and Development Act as back as on 12.05.2006, i.e much prior to dismissal of case of Nagar Nigam under Section 189 of U.P. Z.A. & L.R. Act on 03.09.2012.

As per the record, it reveals that the said NOC as was granted, the same was cancelled by the Nagar Nigam by revoking the same by an order dated 27.12.2006. The said order of revocation of the NOC by Nagar Nigam was put to challenge by the petitioners by filing a Writ Petition, being Writ Petition 66 of 2007 (M/S), Chiranjeet Lal Batta and others Vs. Assistant Collector and another. The coordinate Bench of this vide its judgment dated 26.08.2011, had allowed the Writ Petition on a limited count itself that since the order of revocation of the no objection certificate dated 27.12.2006 was passed by Nagar Nigam without providing an opportunity of hearing, the same was quashed and the matter was remitted back to Nagar Nigam to reconsider the controversy and pass a fresh order on the application for the grant of no objection certificate, which was being treated, as a precondition for sustaining the sanction granted by MDDA of the application under Sections 14 and 15 of the Urban Planning and Development Act.

"Heard Mr. Lok Pal Singh, the learned counsel holding the brief of Mr. Arvind Vashisth, the learned counsel for the petitioners and Mr. Ashish Joshi, the learned counsel for the respondent no.2 Nagar Nigam, Dehradun.

It transpires that the petitioner applied for a "No Objection Certificate" from the Nagar Nigam, Dehradun for the purpose of getting construction map sanctioned from the M.D.D.A. A "No Objection Certificate" was issued by the Nagar Nigam on 12.05.2006. Subsequently, the Nagar Nigam issued an order dated 27.12.2006 revoking the No Objection Certificate.

The petitioner, being aggrieved by this order, has filed the present writ petition.

In para 11 of the writ petition, it has been stated that the impugned order cancelling the No Objection Certificate was violative of Article 14 of the Constitution and that no reasons were assigned for revoking the No Objection Certificate nor any opportunity of hearing was provided to the petitioner.

This allegation has not been denied by the Nagar Nigam in their counter affidavit. Consequently, on the short ground that an opportunity of hearing was not provided to the petitioner before passing the impugned order revoking the N.O.C., the impugned order is quashed and the writ petition is allowed. It would be open to the Nagar Nigam to proceed in accordance with law. "

On the remittance of the matter by this Court vide judgment dated 26.08.2011, the Nagar Nigam proceeded to pass yet another order which is impugned in the present Writ Petition being impugned order dated 26.09.2012, and as a consequence thereto, the NOC granted by the Nagar Nigam on 12.05.2006 was yet again revoked.

On perusal of the order impugned as passed by Nagar Nigam, it has been on various grounds, including the ground attracting provisions as contained under Section 92 of the C.P.C. As far as the bearing, which Section 92 of the CPC would have in relation to the dealing with the property of the Trust, that is altogether a different and independent issue, which is to be decided in the connected Writ Petition No. 594 of 2014 (M/S). But the order of remand as passed by this Court in the judgment dated 26.08.2011, for reconsideration of the cancellation of the NOC, the reconsideration of the grant of NOC was confined from view point that if it was required under law it was to be done only after an opportunity to the petitioners, i.e. after hearing them, the cancellation could not have been done by the Nagar Nigam by drawing an attraction of an implication contained under Section 92, which could not be taken as an issue for the purposes of sanction under Sections 14 and 15 of the Act for the MDDA for the reason being that the prior grant of NOC on the directions of MDDA was not contemplated under the by-laws as framed by MDDA under Section 57 of the UP Urban Planning and Development Act and once the said aspect that grant of NOC as a precondition for sanction under Sections 14 and 15 of the Act , is not a condition precedent and provided under the by-laws framed by the MDDA, the grant of NOC ought not to be taken as a precondition for sanctioning of lay out. Thus, cancellation of NOC made by the Nagar Nigam, so far it correlates to the permission granted for construction to the petitioners will have no nexus once it is not statutorily contemplated under the bye-laws of the MDDA.

The MDDA was directed to be impleaded by the orders of this Court as a party respondent on 29.08.2019 in the present writ petition in order to drive a conclusion as to whether at all the NOC is one of the statutory conditions provided under the bye-laws which is required to be satisfied for sanction under Sections 14 and 15 of the Act.

On the perusal of the instructions, which has been received by Mr. Rahul Consul, Advocate for the MDDA, he has made a statement that as per the instructions, which he has received from competent authority of MDDA, the by-laws as framed by them under Section 57, nowhere lays down that the grant of NOC from Nagar Nigam would be a precondition for sanctioning of a map. If that be so, if the sanction, which was granted on an application filed by the petitioners for grant of NOC, it was only on the directives of the MDDA, which has been treated as to be a condition precedent for sanction of lay out. Subsequently, its revocation will have no bearing for consideration of the application under Sections 14 and 15 of the Act, once it is not statutorily contemplated under the bye-laws framed under UP Urban Planning and Development Act, as to be a condition, which is necessarily required for sanctioning of the map.

While reserving the rights of the parties to the present Writ Petition to have inter se claim decided in relation to the provisions contained under Section 92 of the C.P.C. and its impact in relation to the property, in question, which is being left independently to be decided in the connected Writ Petition No. 594 of 2014 (M/S), but, as far as the cancellation of the NOC by the impugned order is concerned, since the very foundation of availing of NOC as a precondition for considering the application under Sections 14 and 15 of the U.P. Urban Planning and Development Act, admittedly, when the same is not a condition preceding under the bye-law of the MDDA, its revocation itself would not be sustainable under the eyes of law to have any effect on sanction under Sections 14 and 15 of the Urban Planning and Development Act.

Hence the order of revocation of the NOC made by the order impugned dated 26.09.2012 under challenge in the Writ Petition is quashed. However, quashing of the order of Nagar Nigam revoking the NOC would not have any bearing as far as other issues pertaining to how the property of the Trust would be dealt with, absolutely left open to be decided independently in the connection Writ Petition.

This Writ Petition, subject to the aforesaid restrictions being imposed, stands allowed. The impugned order of revocation of NOC dated 26.09.2012 is hereby quashed.

However, there would be no order as to costs.