IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1014 of 2008 (M/S) St. Amtul’s Public School, Ayarpatta Hill, Tallital, Nainital through its Manager/Adiministror Shri Sameer Sharma. ………… Petitioner. Versus State of Uttarakhand through Secretary, Urban Development, Secretariat Government of Uttarakhand, Dehradun, Uttarakhand and two others. ……….Respondents. Sir Vipul Sharma, holding brief of Sri Rahul Consul, learned counsel for the petitioner. Sri K.P. Upadhyay, learned Addl. C.S.C. for the State-respondent nos. 1 and 3. Sri U.K. Uniyal, Senior Advocate, with Sri Shbhit Saharia, learned counsel for the respondent no.2. Date June 25, 2008. Hon’ble B.S. Verma. J. Sri Vipul Sharma, holding brief of Sri Rahul Consul, learned counsel for the petitioner, Sri K.P. Upahdyay, learned Additional Chief Standing Counsel for the State-respondent nos. 1 and 3 and Sei U.K. Uniyal, Senior Advocate, with Sri Shobhit Sharia, learned counsel for the respondent No. 3. Heard learned counsel for the parties and perused the record. By means of the present writ petition, the petitioner assailed the interlocutory order passed by the Divisional Commissiner, Kumaon Divisional, Nainital during the pendency of Appeal No. 44 of 2004-2005 (Annexure No. 1 to the writ petition). A perusal of the record shows that the Secretary, Lake Development Authority, Nainital, passed the order of demolition by order dated 26-5-2005 passed in Case No.76/94, Nainital Lake Region, Special Area Development Authority Nainital Vs. Manager/ Principle, St. Amtul’s School Nainital (Annexure No. 7 to the writ petition). Aggrieved by the said order, the petitioner preferred an appeal before the Commissioner, Kumau Division, Nainital, which was registered as Appeal No. 44 of 2004-2005. The commissioner by the impugned order, dated 18-6-2008 passed under sub-section (5) of Section 25 of the U.P. Special Area Development Authorities Act, 1986, (for short the Act) has ordered to seal the unauthorized constructions till the decision of the appeal. The sole ground raise by the petitioner in the writ petition is that there is no provision under Act for sealing under like Section 28-A of the U.P. Urban Planning and Development Act, 1973. Learned counsel appearing for the respondent no.2- Lake Development Authority has contended that the appeal was filed by eh petitioner under Section 25(3) of the Act and there is specific provision under sub-section (5) of Section 25 which empowers the Divisional Commissioner to pass such interlocutory or interim order including stay of operation of the order appealed against, as he considers necessary for the ends of justice. By the impugned order, the Divisional Commissioner has stayed the demolition part of the order appealed against and has ordered for sealing of the illegal construction during the pendency of the appeal. The part of the order is in favour of the petitioner because the order for demolition passed by the Secretary, Lake Development Authority Nainital dated 26-5-2005 is not operative till the final decision taken by the Divisional Commissioner in appeal. The argument of the learned counsel for the petitioner cannot be accepted for the reason that in the case at hand, power has been given to the commissioner under sub-section (5) of Section 25 of the Act and in exercise of the power, the learned Commission has passed interlocutory order during the pendency of appeal for sealing of the illegal construction for the reason that further unauthorized construction be not raised and to maintain the position of the building till disposal of the appeal. I have perused the provisions of Section 25 of the Act including sub-section (5) and I find that there is provision of appeal under sub-section(3) of the Act against the order of demolition of building under sub-section (1) and the provisions of sub-section(5) of Section 25 of the Act are fully applicable and source of power is there to pass interlocutory or interim order including stay of operation of the order appealed against, as the Commissioner considers necessary for the ends of justice. Since the demolition order has been stayed and only the order of sealing has been passed by the Commissioner, Kumaun Division as interim measure, therefore, to my mind, there is no perversity or infirmity in the impugned order. In the circumstances of the case coupled with fact that the impugned order has been passed under sub-section (5) of Section 25 of the Act, in my view, the writ petition filed by the petitioner is devoid of merit and is liable to be dismissed outright at the admission stage. The writ petition is dismissed in limine. However, the Divisional Commissioner is directed to decide the Appeal no. 44 of 2004-2005 expeditiously, as far as possible preferably within a period of four weeks form the date of production of certified copy of this order. Interim order dated 20-6-2008 stand vacated. All the pending applications stands disposed of. (B.S. Verma, J.) RCP