MODERN SCHOOL AND ANOTHER vs STATE OF UTTARAKHAND AND OTHERS

Sharad Kumar Sharma, J

The present Special Appeal has been preferred by the appellant/writ petitioner, being aggrieved by the judgment, rendered by the learned Single

Judge on 22nd February, 2018, in Writ Petition (M/S) No. 1742 of 2016, as a consequence thereto the writ petition preferred by the petitioner against

the impugned order in the writ petition dated 7th June, 2016, passed by the Authorities for demolition of the construction, has been dismissed.Â

2. The grounds preferred by the appellant for challenging the judgment dated 22nd February, 2018, as passed by the learned Single Judge are as

follows:

(a) The learned Single Judge has failed to appreciate the fact that the map of the building was sanctioned on 9th July, 2009, i.e. before the

enforcement of the Rishikesh Master Plan 2011. The appellant contend that, at that point of time, there was no such 18 meter road proposed under the

Master Plan and thus this aspect has not been considered by the learned Single Judge and the judgment deserves to be set aside;

(b) Learned counsel for the appellant submits that no road can be proposed in a master plan from an existing sanctioned building;

(c) The learned Single Judge has exceeded in the exercise of its jurisdiction by directing the demolition of the building;

(d) The learned Single Judge has not rightly appreciated impact of the provisions of Section 32 of the Uttar Pradesh Urban Planning and Development

Act, 1973 (hereinafter to be called as “the Act of 1973â€​), in the present case which deals with the provisions of compounding.Â

(e) The judgment passed by the learned Single Judge is based on presumptions and surmises and without application of mind under the given set of the

case. 3. The learned counsel for the appellant contends that the averments made in the writ petition ought to have been accepted, more particularly,

when despite several opportunities being granted to the respondents-authorities, they have not filed any counter affidavit to controvert the pleadings

and the averments made therein ought to have been taken true and accepted.

The appellant/petitioner has taken a ground that in Rishikesh Master Plan 2011 had never came into force and in the Master Plan of 2000, there

was no such proposed 18 meter road. The appellant contend that the judgment of the learned Single Judge is bad because it failed to appreciate that

18 meter road was never acquired u/s 54 of the U.P. Urban Planning and Development Act of 1973, and that the learned Single Judge had exceeded

its jurisdiction beyond the scope of the writ petition by giving the direction for demolition, hence cannot be sustained.Â

Brief facts, leading to filing of the writ petition by the petitioner were that the petitioner in the writ petition has prayed for quashing of the order

dated 7th June, 2016, passed by the Additional Chief Administrator, Uttarakhand Avas Evam Nagar Vikas Pradhikaran Dehradun (respondent No. 4

to the writ petition) as well as the order dated 10th July, 2014, which has merged in the order dated 7th June, 2016. A prayer of mandamus has been

sought for issuing an appropriate direction to the development authority to compound the map of the 4th floor of the building in question. The petitioner

has sought a relief that an appropriate direction by way of mandamus may be issued directing the respondent to strike-down the proposed 18 meter

wide road from the Rishikesh Master Plan 2011, which purports to encroach upon the existing sanctioned building of the petitioner as the same cannot

be implemented in view of the embargoes contained u/s 54 of the Act. Â

In the writ petition, it is the case of the petitioner that the impugned order dated 7th June, 2016, as passed in Revision No. 411 of 2014, is as a

consequence of the conclusion of the first round of litigation as preferred by the petitioner by filing of the Writ Petition (M/S) No. 1785 of 2014,

wherein he has given challenge to the order dated 10th July, 2014, passed by the Vice President, Haridwar Development Authority, Haridwar

(respondent no. 2 to the writ petition), which was dismissed on the grounds of availability of an alternative remedy.Â

Learned counsel for the appellant/writ petitioner submits that the petitioner(s) is a registered society, registered under the provisions of Societies

Registration Act, 1860, bearing registration No. 2082/198283, registered on 13th January, 1983 and the registration continue to be renewed from time

to time and is valid as on date.Â

It is the contention of the writ petitioner that they are engaged in conducting various professional courses, under the name and style of “Modern

Institute of Technology Societyâ€​, situated at village Dhaalwala, Tehri Garhwal since 2002.Â

It is the submission of the learned counsel for the appellant/writ petitioner that the institution managed by them, it is under a self-financed institution,

managing the affairs of the academics regulated by it. The contention of the writ petitioner is that the Development Authority, while exercising powers

under the Act of 1973, after the grant of due sanction on 1st September, 2000, the petitioner contends to have constructed the building as per the

sanctioned plan in their favour. The submission of the writ petitioner is that at the time when the sanction was granted on 9th July, 2000, there was no

master plan in existence in that area.Â

Admittedly, according to the writ petitioner, the sanction of 9th July, 2000 was of the ground floor, 1st floor and the 2nd floor, but as would be

apparent from his application preferred u/s 32 of the Act of 1973 on 9th October, 2013, appellant has prayed for compounding, which in itself infers

that he admits the fact that he has constructed the 4th floor against the sanctioned plan of 9th July, 2000 rather without a plan. Hence, in the

application, thus filed by appellant on 9th October, 2013, he has prayed for compounding of the said construction of the 4th floor. When no action was

taken, he submits that he has submitted reminders on 8th May, 2014 and thereafter on 22nd May, 2014, requesting Development Authorities to

compound the said construction made on the 4th floor.Â

It is the case of the appellant/writ petitioner that while taking cognizance to the application u/s 32 as filed on 9th July, 2000, the development

authorities had constituted a team for holding an on spot inspection and for conducting an enquiry, calling upon a report for the purposes of considering

the compounding. It is the case of the writ petitioner further that it is for the first time when the said report was submitted in it, a reference was made

with regards to the implementation of the master plan of 2011, wherein at the place of existence of the said building, there is a proposed 18 meter wide

road. As would also reveal, on scrutiny of the letter dated 20th February, 2014, whereby the direction was issued for conducting an enquiry, the Senior

Town Planner, had rather on 5th March, 2014, sought a clarification from the Deputy Secretary, Haridwar Development Authority regarding the

objections taken by the appellant/writ petitioner, pertaining to the alleged existence of 18 meter wide road, as shown in the letter dated 20th February,

2014 have reference to Master Plan of 2011.

On scrutiny of the letter dated 22nd May, 2014 written by the Senior Town Planner, perhaps it shows the sanction of the construction of the

building of the petitioner, but simultaneously, it also reflects the proposed 18 meter wide road, which is alleged to be encroaching upon the existing

building of the writ petitioner. The writ petitioner submitted that in the Master Plan of 2011, the Authorities, by wrongly taking into consideration the

zoning regulations, as made applicable in the case of educational institution has observed that the land used for educational institution has to be

continued to be an approved land under the minor industries, whereas as per the communications on record, the land on which institution of the writ

petitioner exists, is not lying within the industrial area under the development and the control of the State or the development corporation of the State.

Based on the decision of the Senior Town Planner, it is the Vice President, Haridwar Vikas Pradhikaran, who is said to have passed the order

dated 10th July, 2017, exercising the power u/s 16 of the Act of 1973, whereby it was observed that after the enforcement of the master plan and on

the basis of division of zones, the use of the land and building as put in by the writ petitioner was contrary and its use was not inconformity with the

master plan, section 16 of the Act of 1973 reads as under:-

“16. Uses of land and buildings in contravention of plans. â€" After the coming into operation of any of the plans in a zone no person shall use or

permit to be used any land or building in that zone otherwise than in conformity with such plan:

Provided that it shall be lawful to continue to use, upon such terms and conditions as may be prescribed by bye-laws made in that behalf, any land or

building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.â€​

On scrutiny of the impugned order dated 10th July, 2014 as passed by the Vice President, Haridwar Vikas Pradhikaran, Haridwar, it shows that

the land on which the school of the writ petitioner/appellant is in existence, it is being utilized contrary to the use of land and building as contemplated

in the master plan. The zonal regulations plan as provided under the Rishikesh Master Plan, 2011, particularly, clause 20.3, it reads as under:

**20-3 fofHkUu Hkw&mi;ksx tksUl esa izkfo/kku lkekU;%

1- ;fn fdlh {ks= dk foLr`r lsDVj ys&vkmV Iyku Lohd`r gks pqdk gS rks uhps fn;s Hkw&mi;ksx ykxw ugha gksxsA buds LFkku ij lsDV ys&vkmV

Iyku esa fn;s x;s Hkw&mi;ksx ykxw gksaxsA

2- fodkl izf/kdj.k lHkh }kjk izR;sd ekeyksa ds xq.kksa ds vk/kkj ij uku&dUQkfeZx Hkou dh ;FkkfLFkfr j[kus ds ckjs esa fu.kZ; fy;k tk ldrk gSA**

The Master Plan 2011, as contained in 20.3 provided that if in any zone or sector under the master plan if lay-out plan has been sanctioned and the

user of the land is not applicable, in that eventuality, the user of the land as contemplated in the lay-out plan under the master plan would be applicable.

The appellant(s)/writ petitioner(s), in order to fortify their case as to whether the land on which the Modern Institute of Technology, Dhaalwala exists,

lies whether it is within the industrial zone under the U.P. Industrial Development Corporation or not, had moved an application before the Assistant

Manager, District Commission Centre, Dhaalwala on 16th August, 2002 for collecting the information. A response which was given on 17th August,

2002 by the Assistant Manager, District Commission Centre as according to the writ petitioner, has fortified that the land over which the institution of

petitioner is existing, is not within the industrial area.

It was the case of the writ petitioner that the Master Plan of Rishikesh has become redundant and not enforceable as on date as the same cannot

be enforced on a building, which has already been sanctioned and thus according to the writ petitioner, the respondents cannot contend that the 18

meter wide road as shown to be under the Master Plan 2011, could be said to have covered the land for which the plan was sanctioned of the writ

petitioner under the Act of 1973.

The appellant(s) writ petitioner(s) in support of their contention has submitted that the subsequent master plan of 2011, since it does not

commensurate to the provisions of Section 54 of the Act of 1973, as it contemplates a procedure to be followed where a land situated in the

development area is required by the Master Plan or the Zonal Plan for development. It provides that in such an eventuality, to meet the need of the

master plan, there has to be compulsory acquisition. The case of the writ petitioner is that prior to taking the impugned action, there was a non-

compliance of Section 54 of the Act of 1973 in the absence of their being a notification of the acquisition.Â

It is the case of the writ petitioner that while passing the impugned order and while taking impact of Section 54 of the Act, the authorities have

failed to take into consideration that the compounding which has been filed by the writ petitioner only relates to the 4th floor and not of the ground

floor, hence the question of existence of 18 meter wide road cannot overlap the land on which the building exists upto the 3rd floor after its due

sanction being granted under the Act of 1973. Considering the factual backdrop, the application for compounding of the 4th floor of the petitioner has

been rejected on 10th July, 2014 against which a revision was preferred by the petitioner u/s 41 of the Act. The Revision, too, has been rejected by the

impugned order dated 7th June, 2016, hence the writ petition on the grounds, which have already been narrated above.

The learned Single Judge by the impugned judgment has dismissed the writ petition thereby confirming the orders dated 10th July, 2014 and 7th

June, 2016. The impugned order dated 10th July, 2014 as passed by the Vice President, Haridwar Development Authority while considering the

representation submitted by the petitioner in pursuance to the order dated 29th May, 2014 passed in Writ Petition No. (M/S) 1243 of 2014 filed by the

petitioner, the Vice President, Haridwar Vikas Pradhikaran, Haridwar concluded that the map which was annexed by the petitioner along with the

representation submitted in compliance of the High Court’s order and as compared to the map filed with the compounding application, there was a

vast difference and on scrutiny by the Assistant Engineer, a technical report too, which was submitted on 16th June, 2014, the discrepancies were

witnessed in the map and it was informed to the petitioner by the Secretary, Development Authority.Â

It was observed in the report of Assistant Engineer that the petitioner had deliberately not shown the existence of 18 meter wide road in the map

filed by him u/s 32 or for sanctioning lay out, which constituted to be the part of the Master Plan 2011. The Haridwar Development Authority, while

passing the impugned order dated 10th July, 2014 had observed that the petitioner has not come up with clean hands, because almost in all of the

communications which has been made by him i.e. the map, representation etc. The map submitted by him before the Haridwar Development

Authority records on 9th October, 2013, varies from one another. This fact that there had been a variance in the map submitted by the petitioner in

compounding is not being denied or accepted by the petitioner rather he maintains silence over it. The Authority, by the impugned order had rightly

rejected the application on the ground that since there being two contradictory maps given by the appellant/writ petitioner, it is practically not possible

to consider the issue of compounding and proceeded to consider the map as submitted on 9th October, 2013, along with the application for

compounding. The Vice President, Haridwar Vikas Pradhikaran, while passing the impugned order has also considered the fact that the map as filed

with the representation on 9th October, 2013, was intentionally shown after excluding 18 meter wide road, which otherwise existed in the Master Plan,

whereas in the representation submitted by the appellant/writ petitioner on 6th June, 2014 along with the master plan of 2011 a construction is shown

to be existing on the part of the road proposed under the master plan.

The Vice President, Haridwar Vikas Pradhikaran, Haridwar, after considering the entire aspects and documents on record came to the conclusion

that taking into consideration the Master Plan as sought for by the appellant/writ petitioner u/s 32, permission cannot be granted for compounding.

Against the order dated 10th July, 2014, the matter travelled in revision and the Revisional Authority too has affirmed the reasoning assigned by the

Vice President, Haridwar Vikas Pradhikaran, whereby the Revisional Authority has also concurrently come to the conclusion that the application

submitted u/s 32 for compounding in the construction on the 4th floor, which admittedly happens to be without sanction being granted in favour of

the petitioner, coupled with the fact that under the Master Plan 2011, which shows the existence of 18 meter wide road on part of which construction

has been raised, the said construction cannot be compounded. Consequently, the revision too, was dismissed.

Having scrutinized the judgment rendered by the learned Single Judge dated 22nd February, 2018 in the light of reasoning assigned in the impugned

order under challenge in the writ petition, we do not find any error in the judgment because the Court under Article 226 of the Constitution of India,

while exercising powers of judicial review cannot undergo the review of facts which stand affirmed concurrently by the Development Authority as

well as by the Revisional Authority. Thus, the Appeal fails and is dismissed. No order as to costs.

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