IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Writ Petition No. 876 of 2008 (M/S) Praveen Kumar Gupta, S/o Late Shri Prem Nath Gupta, R/o 79 Park Road Dehradun, District Dehradun …………….Petitioner Versus (1) Mussoorie Dehradun Development Authority, through its Vice President, Preetam Road, Dehradun, District Dehradun (2) Secretary, Mussoorie Dehradun Development Authority, Preetam Road, Dehradun, District Dehradun ………..Respondents Mr. Lok Pal Singh, Advocate, present for the petitioner. Mr. B.D. Upadhyaya and Ms. Puja Banga, Advocates, present for the respondents. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article 226 of the Constitution of India, the petitioner has challenged the order dated 13.05.2008, passed by respondent No. 1, and order dated 15.05.2008, passed by Government of Uttarakhand. (2) Heard learned counsel for the parties and perused the record. 2 (3) Brief facts of the case, as narrated in the writ petition are that petitioner purchased a plot of land, measuring 165.03 Sq. Mtr. at Park Road, Dehradun, through registered sale deed dated 18.08.2003. He submitted a plan for construction (for residential purposes) to the respondent No. 1, which was sanctioned vide order dated 22.11.2003. However, later petitioner converted three rooms on the ground floor of residential accommodation into five shops, which could be used for commercial purposes. It appears that a tower was installed on the top of the house, on which one Sardar Pyara Singh made a complaint against the petitioner to the respondents, on which a notice dated 29.04.2006 (copy annexure 3 to the petition) was issued by respondents under Section 28(a) of U.P. Urban Planning and Development Act, 1973 (applicable to State of Uttarakhand), and a Case No. C253/S-7/2004 was registered for demolition and removal of illegally installed tower. Before that, on 14.07.2005, respondent No. 1 passed an order under Section 27 read with Section 28 of the aforesaid Act for issuing notices to the petitioner as to why the constructions converting the residential accommodation into commercial complex be not demolished. Against said order, the petitioner appears to have moved an application before Commissioner Garhwal 3 Mandal / Chairman Mussoorie Dehradun Development Authority (for short M.D.D.A.), for permitting him to get the matter compounded, on which the Commissioner passed an order on 20.07.2005, directing Secretary M.D.D.A. to consider the compounding application and till then stayed the demolition proceedings. It is alleged by the petitioner that instead of compounding said case, a demolition order was passed by respondent No. 1 on 09.04.2007, pertaining to unauthorizedly installed tower over the building. Thereafter, a notice dated 14.05.2007 (copy annexure 6 to the petition) was issued against the petitioner relating to unauthorized constructions raised by him. An appeal appears to have been filed against said order before the Chairman, M.D.D.A. / Commissioner Garhwal Mandal, by the petitioner on 25.04.2007. On said appeal, on 27.07.2007, the appellate authority passed an interim order to open the sealed premises with further direction that no new constructions be made by the petitioner. Thereafter, the respondents filed a revision No. 152 of 2007, before the State Government under Section 41 of U.P. Urban Planning and Development Act, 1973. The Government directed an Additional Secretary to inspect the premises. On 10.04.2008, the Additional Secretary passed the order in the 4 revision filed by respondent no. 1, to consider the application of compounding. The petitioner alleged that without considering his case on merits vide order dated 13.05.2008 (copy annexure 12 to the petition) the compounding application was dismissed by respondent No. 1. Hence, this petition. (4) The respondents have contested the case and filed their counter affidavit, in which it has been admitted that a complaint was received from one Sardar Pyara Singh in respect of tower raised over the house of the petitioner, which endangered the neighbourhood of the locality. The action taken by the respondents is justified in the counter affidavit stating that in the compounding matters there is no requirement to give opportunity of hearing to the petitioner. It is further stated that the State Government was fully competent to close the file after considering the matter before it. (5) In the rejoinder affidavit the petitioner has reiterated the averments made in the petition. (6) It is not disputed that the petitioner had purchased land measuring 165.03 Sq. Mtr., situated at Park Road, Dehradun, through registered sale deed dated 18.08.2003. It is also 5 not disputed that for residential accommodation plan submitted by him was sanctioned by the respondents on 22.11.2003. It is also admitted between the parties that the residential accommodation was converted by the petitioner into five shops on the ground floor for which there was no sanction from the respondents. This itself shows that the petitioner invited the action for himself under U.P. Urban Planning and Development Act, 1973. The petitioner further invited trouble for himself by getting installed tower over the building and two cases got initiated against him for violation of the provisions of aforesaid Act. (7) Learned counsel for the respondents submitted that application for compounding was rightly rejected by the respondents for the reason that if the tower installed was permitted to stay it would have caused continuous danger to the neighbourhood of the petitioner’s house. Having considered the submissions of learned counsel for the petitioner and that of the respondents, this Court is of the view that in its writ jurisdiction this Court cannot look into the correctness of the satisfaction recorded by the respondents provided provisions of law are complied with. Merely by moving a compounding application, it is not the 6 right of the petitioner to get the matter compounded. In other words, the respondents had a right either to accept or to reject the application for compounding moved before it by acting fairly. Since, it has been brought on the record by filing a counter affidavit that installation of tower on the roof by the petitioner is causing danger to the residents of the locality, this Court is of the view that the respondents have committed no error of law in rejecting the compounding application, moved on behalf of the petitioner. (8) However, as far as the compounding application, regarding change of residential accommodation into a commercial complex is concerned, it has not been shown by the respondents that said application has been disposed of. Learned counsel on behalf of petitioner undertook that the petitioner would remove the tower installed on the roof of the house, and it is requested that his application for compounding in respect of change of residential accommodation into commercial complex may be considered. To this, respondents’ counsel has also no objection. Therefore, the writ petition is disposed of with following directions:- 7 (i) That, the petitioner shall remove the tower installed on the building, owned by him, on Park Road, Dehradun, within a period of one month from today; (ii) Thereafter, the respondents shall open the sealed shops and would consider the compounding application moved by the petitioner as per the provisions of law, relating to change of residential accommodation into commercial complex; (iii) If the petitioner fails to remove the tower installed on the building, the respondents- authorities are at liberty to get it removed. (Prafulla C. Pant, J.) 22.06.2009 NS 8