HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.247 of 2009 (M/S) Mussoorie Dehradun Development Authority …Petitioner Versus M/s Rajpur residency & another …Respondents Mr. Kanwaljeet Singh, Advocate for the petitioner. Mr. T.S. Bindra & Mr Arvind Vashistha, Advocates for the respondents. Dated : 30.07.2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for quashing the order dated 31.08.2007 passed by Chairman, Mussoorie, Dehradun Development Authority (for short M.D.D.A.) in Appeal No.43 of 2006-07 and order dated 18.08.2008 passed by Additional Secretary, Department of Housing, Government of Uttarakhand in Revision no.178 of 2008. 2. Brief facts of the case are that respondents submitted a plan for construction of Group Housing. The plan was sanctioned vide Plan No.2304/03-04 on 22.06.2005. On 02.02.2007 a complaint was made against the respondents in which it was informed that width of the approach road given in the plan was not in consonance with the existing building byelaws of M.D.D.A and there was also a dispute regarding the ownership of the said approach road. In this regard the 2 respondents were called upon to clear their position and were further informed that they had got the aforesaid plan sanctioned by concealment of fact as well as by fraud. Respondents submitted their response on 08.02.2007. After giving an opportunity of hearing to respondents, the Vice Chairman, M.D.D.A passed an order on 03.05.2007 rejecting the sanctioned plan of respondents. Thereafter, the respondents filed an appeal before the Chairman, M.D.D.A. under Section 15(5) of the U.P. Urban Planning and Development Act, 1973 (for short the Act) against the order dated 03.05.2007. On 31.08.2007 the Chairman, M.D.D.A. allowed the appeal of the respondents and set aside the order dated 03.05.2007. Aggrieved by the order dated 31.08.2007 the petitioner filed a Revision No.178 of 2008 under Section 41(3) of the Act before the Additional Secretary, Department of Housing, Government of Uttarakhand. But the Additional Secretary, Department of Housing, Government of Uttarakhand vide order dated 18.08.2008 rejected the same and upheld the order passed by of Chairman, M.D.D.A. Against these orders present writ petition has been filed. 3. Learned counsel for the petitioner argued that the Chairman M.D.D.A. erred in coming to the conclusion that approach road to the Group Housing is in consonance with the Bye Law 3.3.3, which is 12 mtrs. In support of his argument the learned counsel for the petitioner submitted that as per Bye Law 3.3.3. the approach road for Group Housing should be 9 mtrs. but where proposed building is 3 more than three stories or area of plot is more than 1500 sq. mtrs., then the minimum approach road should be 12 mtrs. He submitted that in the present case the approach road to Group Housing is 6 to 7.5 mtrs. Therefore, it cannot be said that approach road is in consonance with the Bye Law 3.3.3. Learned counsel for the petitioner further submitted that the State Government has also erred in holding that the approach road is 22 mtrs. which is beyond 12 mtrs. In support of his arguments he placed reliance on the judgment passed by this Court reported in 2007(4) ALJ 424, Doon International Education Society vs. State of Uttaranchal as well as on the judgments passed by Hon’ble Apex Court reported in AIR 1989 S.C.C. 997 State of U.P. vs. Maharaja Dharmander Prasad Singh, AIR 1974 S.C. 2177 K Rama Dass vs. Chief Officers, AIR 1991 S.C. 1902 Bangalore Medical Trust vs. B.S. Mudappa & AIR 1999 S.C. 2468 M I Builders vs. Radhey Shyam. 4. On the other hand, the learned counsel for the respondents submitted that writ petition is not maintainable mainly on the ground that order passed by the State Government cannot be challenged by the M.D.D.A. as order passed by the State Government under Section 41 of the Act is final and binding on the petitioner. He further submitted that M.D.D.A. has power to cancel the plan only under Section 15(9) of the Act if the Vice-Chairman is satisfied that any permission was granted in consequence of any material mis-representation made or any fraudulent statement or information furnished. But in the present case 4 the Vice-Chairman in his order dated 03.05.2007 has not recorded any such satisfaction nor has given any reason for coming to the conclusion that there was any fraud, mis- representation but permission has been cancelled on the ground that the width of the approach road shown in the plan was not in consonance with the rules and there was some dispute pertaining to the width of the road. He submitted that at the time of according the sanction, the officers and engineers of the M.D.D.A. had repeatedly seen the site, the width of the passage was known to them and the sale deeds of the respondents were also available with M.D.D.A. Therefore, under such circumstances, it cannot be said that respondents had played any fraud. He also argued that since, the Chairman of the M.D.D.A. as well as the Additional Secretary (Housing) of the State have given concurrent findings to the effect that the width of road as well as internal passage is in accordance with the norms of the M.D.D.A., no interference is called for. 5. The argument of the learned counsel for the respondents regarding maintainability of writ petition is rejected because this Court is of the view that order passed by the State Government under Section 41 of the Act can be challenged by M.D.D.A. like any other aggrieved person. After examining the record of the petition, I find that at no point of time any fraud was played by the respondents. Respondents submitted plan showing actual position of the land and did not conceal anything. At the time of according the sanction, the width of the passage was known to the 5 petitioner, the officer/engineer of the M.D.D.A. visited the site and only thereafter granted sanction to the plan. Thus, respondents cannot be held guilty for any mis- representation. For appreciating the argument of learned counsel for the petitioner that orders of Chairman of M.D.D.A. and State Government Bye Law 3.3.3 of the Bye Laws is being reproduced below: 3.3.3 igq¡p ekxZ % Þxzqi gkmflax ds fy;s izLrkfor Hkw[k.M U;wure 9-0 ehVj pkSMh lMd ij fLFkr gksxk ijarq 3 eafty ls vf/kd vFkok 1500 oxZehVj ls vf/kd Hkw[k.M gsrq ekxZ dh U;wure pkSMkbZ12-0 ehVj gksxhA Hkouksa esa vkus tkus ds fy;s vkUrfjd ekxZ dh U;wure pkSMkbZ 4-5 ehVj rFkk yEckbZ 50 ehVj] 125 ehVj yEckbZ rd 6-0 ehVj rFkk 250 ehVj yEckbZ rd 9-0 ehVj gksxhA blls vf/kd yEcs ekxZ dh pkSMkbZ mifof/k la[;k 2-3-1¼1½ ds vuqlkj gksxhAß 7. From bare reading of the Bye-Law 3.3.3 of the Bye Laws it is clear that width of the road for the plots exceeding 1500 sq. mtrs. or three stories building should be 12 mtrs. and width of approach road upto 125 mtrs. should be 6.00 mtrs. The learned Additional Secretary, Housing in his order clearly mentioned that the plot in question is situated at the road which is 22 mtrs. wide. Similarly, he also found the width of the approach road between 6 to 7.5 mtrs. which in accordance with the Bye Law 3.3.3 of the Bye Laws. The Chairman, M.D.D.A. and Additional Secretary, Housing have rightly come to the conclusion that width of the road as well as width of approach road of the plot of the respondents is in accordance with Bye Law 3.3.3. of the Bye Laws. Case 6 Law cited by the petitioner does not help him in view of the fact that respondents neither concealed anything before the petitioner nor committed any fraud and also in view of the fact that plan submitted by them was in accordance with Bye Law 3.3.3 of the Bye Laws. 8. I do not find any illegality in the orders impugned. Consequently, the writ petition is dismissed. No order as to costs. 9. Stay application no.1258 of 2009 stands rejected. (V.K.Bist. J,) 30.07.2010 Arti 7 8