IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3244 of 2001 (M/S) Sri Masood Ahmed Partner ..… Petitioner Versus The Commissioner Kumaon Division, Nainital and another ..… Respondents Mr. Sharad Sharma, Advocate for the petitioner. Mr. U.K. Uniyal, Senior Advocate assisted by Mr. Shobhit Saharia, Advocate for the respondents. Mr. H.M. Raturi, Standing Counsel for the State. Hon’ble Tarun Agarwala, J. The petitioner is running a hotel at Mallital, Nainital under the name and style of M/s Hotel Woodland which had a ground floor and a first floor. The petitioner applied for construction of the second floor. The Nainital Lake Development Authority sanctioned a map for the construction of the second floor by an order dated 16/10/1991. Clause 15 of the terms and conditions of the order dated 16/10/1991 contemplated that the roof of the second floor would not be of RCC slab but would be made of tin sheet having a slope. The sanctioned plan, a copy of which, has been annexed as annexure-1 to the writ petition, indicates the height of the second floor at 2.9 meters plus 1.4 meters. The petitioner started the construction of the second floor and, after the height of 2.9 meters, raised a concrete slab. At that point of time, the authorities issued a notice directing the petitioner to stop the construction as the same was in violation of the sanctioned plan. It transpires that the petitioner paid no heed to the said notice and, eventually, an order dated 22nd February, 1992 was passed directing the petitioner to demolish the RCC slab constructed at the height of 2.9 meters. The petitioner preferred an appeal alleging that he had not made any violation of the terms and conditions of the sanctioned plan and that the R.C.C. slab was for the purpose of a false ceiling on top of which a tin roof would be erected. The appellate authority did not agree with the submission 2 of the petitioner and rejected the appeal by an order dated 31st March, 1994. The petitioner, being aggrieved, filed a writ petition before the High Court of Judicature at Allahabad where it was admitted and an interim order dated 06/09/1994 was passed which is quoted hereunder :- “Learned Standing Counsel prays for and is granted one month’s time for filing a counter affidavit. List the writ petition for admission in the month of November, 1994. In the meanwhile, considering the assertions made by the petitioner in the memorandum of appeal filed by him, a true copy of which has been filed as annexure 3 to the writ petition and the facts and circumstances as brought on the record, it is directed that the operation of the order dated 22.2.92 passed by the respondent no.2 as affirmed by the order dated 31.3.94 passed in the appeal by the respondent no.1, shall remain stayed provided the petitioner does not raise any construction henceforth except putting a tin roof over the second floor.” Based on the aforesaid directions of the court dated 6th September, 1994, the petitioner raised a tin roof over the RCC slab. It is stated that the tin roof is in accordance with the height mentioned in the sanctioned plan. Upon the creation of this High Court, the matter was transmitted from the Allahabad High Court to this Court. Heard Shri Sharad Sharma, the learned senior counsel assisted by Mr. A.S. Bisht, the learned counsel for the petitioner and Shri U.K. Uniyal, the learned Senior Counsel assisted by Mr. Sobhit Saharia, the learned counsel for the development authority. The learned counsel for the development authority fairly conceded that the construction existing as on date from the outside is in accordance with the sanctioned plan, namely, that there is a tin roof over the second floor constructed by the petitioner and that the height of the second floor is, presumably, in accordance with the sanctioned plan. 3 The only ground urged that the petitioner under no circumstances could have raised a ceiling on the second floor either as a false ceiling or as a permanent ceiling through RCC slab as done by the petitioner and this construction of a ceiling which is of a permanent nature was in violation of condition number 15 of the sanctioned plan. Having heard the learned counsel for the petitioner and the learned counsel for the respondents, the Court is of the opinion that the sanctioned plan has not been violated by the petitioner. Condition No.15 of the sanctioned plan is clear, namely, that the roof of the second floor would not be of a RCC slab and that it would be a tin roof which has a slope. This condition has been followed by the petitioner and the Court had also issued an interim order dated 06.09.1994. The fact that below the tin roof there is a ceiling erected by the petitioner in the nature of an RCC slab, does not violate the sanctioned plan. It may, however, be stated here that the construction of a false ceiling cannot be done which is of a permanent nature. Construction of a ceiling by an RCC slab is of a permanent nature and, consequently, while quashing the impugned orders and allowing the writ petition, the court imposes a condition that no further construction of the third floor would be made by the petitioner until and unless the bye-laws of the authority permit such construction. (Tarun Agarwala, J.) Dated 1st March, 2011 Shiv