Shri Naresh Kumar vs Sanchita Dogra And Others

Ramesh Ranganathan, CJ

This application is filed seeking leave to prefer an appeal against the order passed by the learned Single Judge in Writ Petition (M/S) No. 1143 of 2019 dated 30.04.2019.

The applicant herein had earlier filed Writ Petition (PIL) No.221 of 2018 and a Division Bench of this Court, in its order dated 02.01.2019, had recorded the submission of Mr. Rahul Consul, learned Standing Counsel for the MDDA, that there were 70 errant establishments running hostels in Dehradun and Mussoorie illegally without obtaining permission for conversion of agricultural lands for non-agricultural purposes, and in violation of the norms stipulated by the MDDA. With regards 27 matters pending before the authorities [26 before the Secretary, MDDA (the original authority) and 1 before the Commissioner (Garhwal Division) (the appellate authority), the Division Bench directed them to pass necessary orders, in accordance with law, within four weeks from the date of receipt of a copy of the order, and thereafter to take action against the errant establishments.

The Division Bench had also noted that, while the MDDA had claimed that 43 hostels had already been closed, Mr. Pankaj Miglani, learned counsel for the petitioner therein, had disputed this assertion, and had contended that the hostels were being surreptitiously operated even as on date. The Division Bench had, thereafter, directed the Secretary, MDDA to cause a physical inspection of each of these 43 hostels, which he claimed had been closed, and satisfy himself whether or not these hostels were still operating; and, if they were, to then take action against them in accordance with law within two months from the date of receipt of a copy of the order.

The Secretary, MDDA is said to have issued a show-cause notice to the errant establishments on 28.02.2019. Mr. Pankaj Miglani, learned counsel for the applicant-appellant, would submit that, while certain documents were filed by the respondent-writ petitioner on 14.03.2019, and certain other documents were filed online on 16.03.2019, a sealing order was passed on 16.04.2019 by the Secretary, MDDA; and the appeal preferred thereagainst was dismissed by the appellate authority [Commissioner (Garhwal Division)] by his order dated 25.04.2019. Aggrieved thereby, the first respondent herein filed the writ petition.

The learned Single Judge, in the order under appeal in Writ Petition (M/S) No. 1143 of 2019 dated 30.04.2019, recorded the submission, urged on behalf of the respondent-writ petitioner, that the respondent-writ petitioner was confining her prayer only to the extent that she may be permitted to file a fresh compounding application before the competent authority, and the competent authority be directed to decide the same within a stipulated time. The learned Single Judge, thereafter, observed that, since the prayer was innocuous, the said prayer was being granted. The writ petition was disposed of directing the petitioner to file a compounding application before the first respondent therein within ten days from the date of the order; and, in case the same was filed, the competent authority should decide the same by a speaking and reasoned order within sixty days from the date of production of a certified copy of the order.

The learned Single Judge directed that, till the compounding application was decided, the impugned orders dated 16.04.2019 and 25.04.2019, passed by the Secretary, MDDA and the Commissioner (Garhwal Division) be kept in abeyance. Aggrieved thereby, the present application is filed seeking leave to appeal.

Since the entire exercise was undertaken by the MDDA only in terms of the order passed by the Division Bench of this Court in Writ Petition (PIL) No. 221 of 2018 instituted by the applicant, we see no reason to refuse to grant the applicant leave to prefer an appeal. The application seeking leave to prefer an appeal is ordered.

While we see no reason to interfere with the order passed by the learned Single Judge, in so far as the respondent-writ petitioner's application for compounding was directed to be considered, the learned Single Judge has kept the orders passed by the Secretary, MDDA dated 16.04.2019, and the appellate order passed by the Commissioner (Garhwal Division) dated 25.04.2019, in abeyance even without assigning any reasons as to why he though it fit to interfere with the said orders, and to keep them in abeyance.

It is only if the learned Single Judge had assigned reasons in the order under appeal, as to why he was of the view that the original and the appellate authorities were not justified in sealing the premises, could he then have directed that the orders passed by the Secretary, MDDA dated 16.04.2019, and the appellate order passed by the Commissioner (Garhwal Division) dated 25.04.2019, be kept in abeyance. As no reasons have been assigned, in the order under appeal, for keeping the aforesaid orders in abeyance, we were initially inclined to set aside the order under appeal, and to restore the writ petition to file, permitting parties to put forth their submissions on merits before the learned Single Judge; and for the matter to be adjudicated afresh in accordance with law.

Mr. Avtar Singh Rawat, learned Senior Counsel appearing on behalf of the respondent-writ petitioner, would however submit that, since the respondent-writ petitioner only seeks to have his application, for compounding decided at an early date, it would suffice if, instead of restoring the writ petition, this Court were to direct the Secretary, MDDA to consider the respondent-writ petitioner's application for compounding in accordance with law.

Mr. Pankaj Miglani, learned counsel for the appellant, would submit that, in terms of Section 32 of the U.P. Urban Planning and Development Act, 1973, it is the Vice Chairman or his nominee who is entitled to entertain applications for compounding; and the Secretary, MDDA lacks jurisdiction to do so. Mr. A.S. Rawat, learned Senior Counsel, would request that the respondent-writ petitioner be permitted to file an application afresh, for compounding, to the competent authority; and the competent authority be directed to consider the said application within a specified time frame.

We consider it appropriate, in such circumstances, to set aside the order under appeal; and, instead, permit the respondent-writ petitioner to make an application, seeking compounding, to the competent authority. If any such representation is made within two weeks from today, the competent authority shall consider the said application, and pass appropriate orders thereupon, strictly in accordance with law within two months from the date of receipt of the respondent-writ petitioner's application. Suffice it to make it clear that, till orders are passed by the competent authority, the earlier order passed by the Secretary, MDDA dated 16.04.2019, and the appellate order passed by the Commissioner (Garhwal Division) dated 25.04.2019, shall continue to remain in force.

While Mr. Pankaj Miglani, learned counsel for the appellant, would contend that the respondent-writ petitioner is surreptitiously making construction even without approval of the MDDA, Mr. A.S. Rawat, learned Senior Counsel, would deny the allegation, and would contend that this submission has been made only to prejudice this Court. Instead of examining whether or not any illegal construction is resorted to by the respondent-writ petitioner, suffice it to direct the Secretary, MDDA to stop construction, if any, being resorted to by the respondent-writ petitioner without his prior approval.

The Special Appeal is, accordingly, disposed of. No costs.