HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 302 of 2002 (M/S) (Old No. 35642/1991) Vishwa Nath Sharma (since deceased) (i) Santosh Kumari Sharma and others. ……..Petitioners Versus tate and others. …….Respondents S Mr. Lokendra Dobhal, Advocate for the petitioners, Mr. N.P. Sah, Standing Counsel for the State. Ms. Pooja Banga, Advocate for respondent no.3. . Dated: August 4, 2010 Hon’ble V.K. Bist, J. Heard Mr. Lokendra Dobhal, the learned counsel for the petitioner, Mr. N.P. Sah, the learned Standing Counsel for the State, Ms. Pooja Banga, the learned counsel for respondent no.3/M.D.D.A. and perused the record. 2. Present petition has been filed by the petitioners for the following reliefs:- (A) Issue a writ order or direction in the nature of certiorari quashing: i. Notice/ order dated 12.01.1988 issued/ passed by respondent no.3. (annexure-5), ii. Order dated 20.12.1990 passed by respondent no. 2 (annexure-6), iii. Order dated 15.02.1991 (annexure -7), iv. Order dated 11.11.1991 (annexure- 10), (B) Issue another writ order or direction as this Hon’ble Court may deem just and proper under the circumstances of the case. (C) Award the cost of petition. 2 3. Instant petition arises out of order passed by Special Secretary, Aavas Evam Vikas, State of U.P. Dated 11.11.1991 by which the Revision of the petitioner filed under Section 41 of U.P. Act No. 2 of 1973 (U.P. Urban Planning and Development Act, 1973) was dismissed. The Revisional Authority confirmed the judgment and order passed by respondent no.2 dated 20.12.1990, 15.02.1991 by which the order of Chairman of Mussoorie Dehradun Development Authority dated 12.01.1988 has been confirmed. 4. Brief facts giving rise to the instant petition, as narrated in the petition, are that the petitioner is the of owner of House No. 98/1 Tegore Villa, Dehradun, District Dehradun by way of sale deed dated 15.10.1970 executed by Smt. Hardei. The petitioner constructed a house immediately after getting sanction accorded on 10.05.1972. It is asserted in the petition that in the southern side of petitioner’s plot, there was one another plot, which was purchased by Pooran Lal Sharma from Smt. Hardei. Plot of Pooran Lal was subsequently purchased by one Gyanendra Kumar Sharma but the area was mentioned much more to the excess as was sold by Smt. Hardei to Mr. Pooran Lal Sharma and the extra area which was mentioned in subsequent sale-deed belonged to the petitioner and this controversy was made merely to damage the house of petitioner in order to harass him. It is further asserted that petitioner constructed his house in the year 1972 and basement of this construction is towards South and ground floor has been construction in accordance with the map sanctioned by Municipal Board, Dehradun. The petitioner opened two ventilations and windows on Southern side of his basement. After 3 completing the construction, authorities of Municipal Board inspected the house and assessed House Tax and Water Tax. The petitioner is regularly paying these taxes since 1979 as the same were assessed in accordance with bye-laws of the Municipal Board. The petitioner towards East, prepared paces of 8’ (feet) for own use and on that side, some projections of window and main door of the house were raised. These projections were constructed of about 41/2” (inch) for giving the shape/decoration to the building, just above the door and windows. The said projections as standing in own passage of the petitioner’s house were constructed in accordance with sanctioned map. It is averred in the petition that previously, the petitioner allowed Mr. Pooran Lal Sharma to use the passage of petitioner’s house and lateron he refused to do so. Mr. Gyanendra Kumar Sharma tried to raise construction and to close the ventilation of the basement by raising his boundary wall. Thereafter, the petitioner no.1 Vishwa Nath Sharma (since deceased) filed Original Suit No. 662 of 1987 ‘Vishwa Nath Sharma vs. Gyanendra Kumar’ before the Court of Civil Judge, Dehradun which was subsequently transferred to the Court of IV Addl. Civil Judge, Dehradun. Initially interim order was passed by the Trial Court restraining the defendant Gyanendra Kumar Sharma to fill the land of 4 feet of the petitioner’s wall and he was allowed to construct a wall after 4 feet from the plot of the petitioner and did not close the ventilation of the basement. However, the passage was to be used by both the parties during pendency of said suit. Thereafter, the defendant Gyanendra Kumar Sharma filed a complaint before the Mussoorie Dehradun Development Authority/respondent no.3. A show cause notice was issued to the petitioner under Section 27 (1) of the 4 Development Act to which the petitioner submitted his reply. On 12.01.1988, the respondent no. 3 passed an order to close the window and ventilations and drainage of the Southern side and demolish the projection of passage, otherwise the respondent will demolish the projection and will charge expenses. Thereafter, the petitioner preferred an appeal under Section 27 (2) (1) of the Development Act against the ex-parte order dated 12.01.1988 before Commissioner, Garhwal Division, Dehradun/respondent no.2, but the Appellate Authority vide judgment dated 20.12.1990 dismissed petitioner’s appeal. The petitioner, thereafter moved Review Application seeking recall of the order dated 20.12.1990, but the respondent no.2 rejected the same vide order dated 15.02.1991. Feeling aggrieved by this order, the petitioner filed revision under Section 41 of Development Act before Special Secretary/respondent no.1, who also vide order dated 11.11.1991 dismissed the revision. 5. It is further asserted in the petition that during pendency of aforesaid proceedings, a notice was again issued against the petitioner on 23.06.1988, to which the petitioner replied and respondent no.3 vide order dated 07.07.1991 dropped the proceedings. 6. A supplementary affidavit has been filed on behalf of the petitioner before this Court on 20.06.2010. A bare reading of this affidavit goes to show that an Arbitrator was appointed and ultimately on 18.12.1996 it was settled that the plot which was in possession of defendant-Gyanendra Sharma would be sold within fifteen days through registered sale deed of Rs. 1,75,000/- with possession to Vishwa Nath Sharma (copy of 5 arbitration award is annexed as annexure no.1 to the supplementary affidavit date 20.06.2010). It has been stated in this supplementary affidavit that late Vishwa Nath Sharma on fulfilling condition of the award, has paid Rs. 1,00,000/- on 19.12.1996 through Bank Draft dated 14.12.1996, Rs. 40,000/- through Bank Draft of the same date and rest of the amount has been paid in cash to the defendant Gyanendra Kumar Sharma (annexure no.2 to the supplementary affidavit date 20.06.2010). Thereafter on 19.12.1996 sale deed of the disputed plot was executed in favour of Vishwa Nath Sharma (annexure no.3 to the supplementary affidavit date 20.06.2010) and the dispute in between the said parties has been settled in terms of the arbitration award. 7. In the supplementary affidavit dated 20.06.2010 filed by the petitioner it is further stated that so far the Suit No. 671/1996 ‘Vishwa Nath Sharma vs. M.D.D.A. filed by late Vishwa Nath Sharma pending before the Court of Civil Judge, (Sr. Div.), Dehradun is concerned, the Trial Court has granted injunction in favour of the petitioner (annexure no.4 to the supplementary affidavit date 20.06.2010). 8. During the course of arguments, learned counsel for the petitioner Mr. Lokendra Dobhal stated that after filing writ petition, the property adjacent to the property of petitioner has also been purchased by the petitioner and now grievance of the respondent Gyanendra Kumar Sharma no more exists. He further submitted that as the property adjacent to the property of petitioner has been purchased by the petitioner and dispute in between the petitioner and defendant 6 Gyanendra Kumar Sharma has been settled, therefore the respondent no.3 i.e. M.D.D.A. may be restrained from proceeding further against the petitioner under the provision of U.P. Urban Buildings (Regulations of Letting Rent and Eviction) (U.P. Act No. XIII of 1972). 9. Learned counsel for the respondent no.3/ M.D.D.A. Ms. Pooja Banga, on the other hand, has fairly conceded that in view of prevailing circumstances, the petitioner can seek remedy by filing representation before authorities of M.D.D.A. for redrassal of his grievances and, in case, the petitioner moves such application, the same shall be considered and decided by the Secretary, M.D.D.A./ respondent no.3, in accordance with law. 10. In view of the averments made by the learned counsel for the parties the writ petition is disposed of by permitting the petitioner to move representation before respondent no.3. In case, the petitioner seeks remedy by filing representation before respondent no.3, the respondent no.3 shall consider and decide the same in accordance with law within a period of three months from the date of presentation of representation. 11. No order as to costs. (V.K. Bist, J.) 04.08.2010 NCM: