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Judgment
Sharad Kumar Sharma, J
The petitioner has preferred this writ petition with the following prayer:
"(i) a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 and 2 to ensure implementation of demolition order dated 23.05.2012 passed by respondent no. 2 and demolish the illegal and unauthorized construction raised by respondent no. 3 within fortnight.
(ii) Any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iii) Award the cost of petition to the petitioner."
By way of invoking a writ of mandamus the petitioner has invoked the writ jurisdiction under Article 226 of the Constitution of India for the purposes of an enforcement of the demolition order dated 23.05.2010 as passed by respondent no. 2, while exercising its power under Section 27 of the U.P. Urban Planning and Development Act, 1973, and had thereafter prayed for that to demolish the illegal and unauthorized construction raised by respondent no. 3 within fortnight.
The brief facts under which this writ petition has been preferred are that the development authority in view of the enforcement of a project by virtue of the Government Order dated 01.12.2011 it had provided for the widening of Chakrata road situated in Dehradun and for the rehabilitation of those persons who are affected, as well as, it contemplated for raising of the construction of the semi-demolished house to make it habitable. The State for the said purpose has issued the Government Order No. 2123/V-2011-01(vk0)/2011 dated 02.12.2011, which also provided for giving of the appropriate compensation to the affected persons. Under this Government Order the owner of the building whose building has been partially demolished was given liberty to get the map sanctioned for raising construction on the "remaining part of the building" as per the bylaws and it had also provided for the regularization, which was contemplated in the Government Order dated 08.12.2011. In the Government Order it provided that the front set back of any building would be permissible to be to a limit of 2 meters in place of 4.50 meters after the enforcement of the project enforced by the Government Order dated 02.12.2011 for widening of the Chakrata road. Some of the essential stipulations and conditions under the said project as directed by the Government Order were provided under clause 3 of the Government Order dated 02.12.2011, which is quoted hereunder:
"3. चकराता रोड चौड़ीकरण के विस्थापन के फलस्वरूप विस्थापितों के विस्थापन के सम्बन्ध में सम्यक विचारोपरान्त लिये गये निर्णय के क्रम में मुझे यह कहने का निर्देश हुआ है कि कृपया चकराता रोड के चौड़ीकरण के फलस्वरूप विस्थापितों के सम्बन्ध में निम्नानुसार कार्यवाही किया जाना सुनिश्चित करें:-
(1) चकराता रोड़ चौड़करण से प्रभावित विस्थापितों को प्रभावित क्षेत्रफल के बराबर स्थान आवंटित किया जाए।
(2) जिस सम्पत्ति में भवन मालिक अथवा किरायेदार वर्तमान में काबिज है, उन्हें उसी स्थिति में नव निर्मित स्थान पर विस्थापित किया जाए।
(3) तोड़ी जाने वाली सम्पत्तियों एवं उसके एवज में दी जाने वाली सम्पत्तियों के पारस्परिक मूल्य का अन्तर विस्थापितों से नहीं लिया जाए।
(4) भवन स्वामियों को नये स्थान पर आवास/दुकान आवंटित की जायेगी, जबकि किरायेदारों को ब्वेज वि ब्वदेजतनबजपवद पर बिना लाभ हानि ;दव चतवपिज दव सवेद्ध के आधार पर दुकान/आवास आवंटित किया जाए।
(5) आवंटन लाटरी के माध्यम से न कर घण्टाघर के क्रमानुसार नए परिसर में राजपुर रोड की तरफ प्रवेश द्वार से किया जाए।
(6) रजिस्ट्री, स्टाम्प-क्रय व अन्य विधिक खर्चे में आवंटियों को छूट प्रदान की जाए।
(7) जिन नजूल धारकों द्वारा अपनी नजूल के पट्टे की भूमि फ्री-होल्ड करने के लिए स्वमूल्यांकन से 25 प्रतिशत धनराशि जमा कर दी है, को नए स्थान पर दुकान/आवास, अवशेष धनराशि पूर्व के सर्किल रेट के आधार पर या वर्ष 2000 में प्रचलित सर्किल रेट के आधार पर जमा कराकर/फ्री-होल्ड कराकर आवंटित किये जाने की कार्यवाही की जाए।
(8) आवासीय विस्थापन हेतु 44 वर्गमीटर के निर्मित आवास को ही विस्थापितों को आवंटित किया जाए।
(9) ऐसे नजूल पट्टाधारक जिनकी समय सीमा समाप्त हो चुकी है, उन्हें शासनादेश संख्या-761/अ/आ0-2011-01 (एन0एल0)/2008 टी0सी0, दिनांक 29 नवम्बर 2011 में निहित व्यवस्था के अनुरूप फ्री-होल्ड की सुविधा प्रदान की जाए।
(10) ग्राउण्ड, प्रथम तल एवं द्वितीय तल पर स्थापित पार्किंग एवं अवशेष परिसम्पत्तियों को प्राधिकरण द्वारा पी0पी0पी0 मोड के आधार पर संचाललित किया जाए तथा विस्थापन के उपरान्त आवासों को प्राधिकरण द्वारा भवन आवंटन नीति के अनुसार आवंटित किया जाए।
(11) चौड़ीकरण के फलस्वरूप ध्वस्त होने वाली सम्पत्तियों के स्वामियों को उनकी अवशेष बचे भवन/भूमि पर भवन मानचित्र स्वीकृत कराने में प्राधिकरण द्वारा भवन उपविधि में निम्नानुसार छूट प्रदान की जाएः-
(i) व्यवसायिक भूखण्ड के न्यूनतम आकार 125.00 वर्गमीटर के स्थान पर 15.00 वर्गमीटर एवं आवासीय भूखण्ड के न्यूनतम आकार 60 वर्गमीटर के स्थान पर 40 वर्गमीटर अनुमन्य किया जाए।
(ii) एफ0ए0आर0 1.40 के स्थान पर 2.00 तक अनुमन्य किया जाए।
(iii) भवन की ऊंचाई 9.00 मीटर से 12.00 मीटी तक तथा अधिकतम तीन मंजिल तक अनुमन्य किया जाए।
(iv) ग्राउण्ड कवरेज 65 प्रतिशत के स्थान पर 85 प्रतिशत तक अनुमन्य किया जाए।
(v) पार्किंग में पूर्ण रूप से छूट प्रदान की जाए।
(vi) फ्रण्ट सैट बैक वर्तमान में 4.50 मीटर के स्थान पर 2.00 मीटर अनुमन्य किया जाए। साईड एवं रियर सैट की आवश्यकता नहीं होगी।
(12) चकराता रोड के चौड़ीकरण हेतु यथावश्यकता अधिगृहण हेतु विधिक कार्यवाही की जाए।"
The development authority had issued notice under Section 27 of the Act as against the private respondent on 07.02.2012, wherein, it was pointed out that as a consequence of the widening of the Chakrata road the respondent was directed to remove the wall of bricks after providing front set back and also to remove the brick wall and the door attached to it. Be that as it may, the petitioner had filed a writ of mandamus for enforcement of the order as passed there on it on 23.05.2012, by the development authority contending therewith that the limit of determination of the unauthorized construction as settled by the order dated 23.05.2012 by respondent no. 2 has, in fact, not being enforced on the spot and the demolishment of the structure of the respondent no. 3, thus declared as unauthorized was directed to be demolished.
After filing of the writ petition on 10.01.2018 for the relief quoted above the respondents were directed to file their counter affidavit, and in response thereto, the development authority had filed their counter affidavit on 27.04.2018, wherein, the under Secretary to the MDDA had submitted that on initiation of the proceedings under Section 27 and 28 of the U.P. Urban Planning and Development Act, 1973, the demolition drive was undertaken, and as a consequence thereto, the portion, which was determined as to be falling beyond the area prescribed by the notice dated 07.02.2012, had already been demolished for the purposes of widening of the Chakrata road as intended by the orders passed in the WPPIL No. 87 of 2012 'Rajendra Singh vs. State of Uttarakhand & Others'. It was submitted by the Development Authority in paragraph 5 of the counter that action of demolition as detailed in paragraph 3 of their counter has been taken by respondent no. 2 against the construction of respondent no. 3.
The petitioner contends that looking to the extent of the proposed portion of the building, which was supposed to be demolished of respondent no. 3, in fact, thereafter the demolition after having taken place, only 2 meters width of structure is left with the private respondent from where he is conducting his business. The grievance of the petitioner is that, in fact, this remaining portion of the building too, which has got a depth of 2 meters only, will fall to be outside the ambit of the Government Order, which contemplates providing of the set back of atleast 2 meters have to that extent the entire structure of respondent no. 3 has to be demolished.
Since the controversy required the determination of the factual aspects and also with regard to the determination of the act of the development authority as to what action they have taken, this Court vide its order dated 10.04.2019 had directed the Sub Divisional Magistrate to constitute as independent team of technical experts and submit its report as to whether the extent as determined to be an encroachment by the notice dated 07.02.2012 made by respondent no. 3 was demolished or not. In compliance thereto, a report has been submitted by the Sub Divisional Magistrate after holding of spot inspection on 22.04.2019. Some relevant part of the report is quoted hereunder:
"(4) दिनांक 22.04.2019 को स्थलीय कार्यवाही के दौरान सहायक अभियंता एवं अपर सहायक अभियंता, प्रान्तीय खण्ड लो0नि0वि0 देहरादून द्वारा अपनी तकनीकी आख्या प्रस्तुत की गयी कि उक्त प्रकरण चकराता रोड घण्टाघर से प्रभात सिनेमा के मध्य बाईं ओर का है, जिसमें चकराता रोड़ चौड़ीकरण हेतु शासनादेश संख्या2123/ट-201101(आ0)/ 2011 आवास अनुभाग-2 देहरादून दिनांक 02.12.2011 के क्रम में श्री ओमप्रकाश मिततल की सम्पत्ति संख्या 71(एल0 73 ग्राउण्ड फलोर) जिसमें स्थल पर कुल सम्पत्ति का क्षेत्रफल 46.03 वर्ग मीटर प्रमाणित किया गया, जिसमें से रोड़ वाइडनिंग हेतु 31.56 वर्ग मीटर का अधिग्रहण किया। शेष सम्पत्ति 11.47 वर्ग मीटर शेष बची जो कि स्थल पर यथावत है। स्थल निरीक्षण में पाया गया कि उक्त सम्पत्ति में कोई शटर/दरवाजा एवं ईंट की कोई भी नई दीवार विद्यमान नहीं है, इससे प्रतीत होता है कि पूर्व में यदि कोई नवनिर्माण (शटर/दरवाजा अथवा दीवार) किया गया होगा तो वह पूर्व में ही स्थल से हटाया जा चुका है। पूर्व स्थल का फोटोग्राफ, वर्तमान स्थल नजरी-नक्शा, वर्तमान फोटो ग्राफ, एमडीडीए चालान एवं साईट रिपोर्ट संलग्न है (संलग्नक-5(क), 5(ख), 5(ग), 5(घ), 5(ड.), 5(च)।
As per the report submitted by the Sub Divisional Magistrate, it was pointed out that the complaint of the petitioner is that the left over construction of the respondent no. 3 after widening of the Chakrata road, in fact, will amount to be an encroachment of the 2 meter of the front set back and new construction has been raised, which is said to have been made as back as in 2012. To this report, the argument of the learned counsel for the petitioner is that the report in itself is self-contradictory because the construction, which was shown to have been existing in accordance with the notice issued under Section 27 after being pasted in 2012 is still in existence on the spot, as it was earlier and happens to be in contravention to the Government Order, which had provided for 2 meters of set back while raising a construction.
In support of his contention he has further placed reliance on the information, which has been provided by the development authority to the petitioner, wherein, the following observation has been relied with by the petitioner to the effect that the remaining 2 meters of the structure with respondent no. 4, itself would fall to be in contravention to the provisions of the Government Order, which mandatorily contemplates providing of 2 meters of set back to a building. The part on which the reliance has been placed by the learned counsel of the petitioner is quoted hereunder:
"उक्त दोनों ही प्रकरणों में अवशेष भूमि 2.00 मीटर से कम होने के कारण सम्पूर्ण निर्माण ही सैट बैक में आता है परन्तु वह भाग निर्माण कर्ताओं के स्वामित्व में ही है। शिकायतकर्ता का भवन उसके पश्चात् बना है। ऐसी स्थिति में अवशेष निर्माण जो व्यवसायिक प्रयोग में लाया जा रहा है परन्तु उसकी चौड़ाई इतनी कम है कि उसमें शयन या अन्य स्वीकृति की कार्यवाही सम्भव नहीं है।"
After considering the rival contentions of the parties, wherein, the MDDA has come up with the case in the counter affidavit that in compliance of the order passed by the said authority the demolition has already taken place, this is a fact which is refuted by the petitioner. The petitioner in fact has refuted the demolition again under the pretext that after the demolition being undertaken by the development authority, there ought to have been 2 meters front set back, which was mandatorily required to be maintained by the owner of the property, but in the present case since the left over building itself is of only 2 meters wide, he would mean to say that the said construction has to be also demolished in accordance with the Government Order issued by the MDDA. Even in the report of Sub Divisional Magistrate it records that the width of the construction is so narrow that neither permission for construction can be granted nor any construction is possible, nor any act of composition of the construction could be feasibly enforced.
Supporting his arguments the petitioner has argued relying the various photographs, which he has placed on record, the same cannot be read in the writ jurisdiction under Article 226 of the Constitution of India, and that too when it does not comply the provision of Section 63 of the Evidence Act. This court by its order dated 10.04.2019 had directed the Sub Divisional Magistrate to constitute a team of experts and give the reports as to whether in fact the impugned order of demolition dated 23.05.2012 has been enforced on the spot or not. In response to it, the report has been submitted by the Sub Divisional Magistrate and as per the said report, the Sub Divisional Magistrate in a nut shell has submitted that the demolition as contemplated by the impugned order has already undertaken and, thereafter only a very small portion of the property of the respondent is left.
The issue which now arises for consideration before this Court is that what was the expanse of demolition, which was contemplated by the impugned order, whether it could be scrutinized by the writ courts under Article 226 of the Constitution of India or not and that too at the behest of a private person seeking enforcement of order passed under an Act, in a proceeding in which petitioner is not a party. Hence, he cannot be classified to be aggrieved party.
This Court is of the view that looking to the averments made in the counter affidavit, as well as, in the report itself submitted by the Sub Divisional Magistrate, who was independently appointed by this court to verify the actual position subsisting on the spot, had reported that the demolition had already taken place as per the order of demolition and only a small portion was left with a very narrow width has been left over with the respondent.
The legal issue which crops up for consideration before this court is as to what right the petitioner has while trying to enforce before this court by invoking the writ jurisdiction under Article 226 of the Constitution of India by praying for a writ of mandamus. Admittedly, the action which has been taken by the development authority is an action under a special statute, which would fall to be in Entry 1 of Article 12 of the Constitution of India, i.e. urban development which falls to be in the exclusive domain of the Development Authority and when independent body appointed by this Court itself, has recorded its finding that the extent of so called encroachment as noticed by the Development Authority to the respondent on 10.12.2012, in fact, the extent of demolition which was intended by the said notice has already been undertaken and demolished as per the order demolition dated 23.05.2018.
This court is of a considered view that as far as the proceedings under Section 27 and 28 is concerned, it intends to meet the constitutional mandate of an organized development of an urban area and any orders, which are passed by the authority under the said Act, would be an act which has been performed by the Authority as part of the State activity of organized development and that is why the legislature itself under Section 27, which contemplates for demolition, has provided for an appeal by the person, who claims to be aggrieved by an order of demolition. In fact, no other independent private person has been provided with any forum or nor he could be said to be an aggrieved person due to any action or inaction of the Development Authority in pursuance to the proceedings held under the Act, which would be exclusively confined between the Development Authority or the person against which the action is taken under the Act of 1973.
Even otherwise also, as per the law invocation of writ of mandamus as enunciated by the Constitution of India, it contemplates for an enforcement of a right of the petitioner conferred under law, which has been infringed. Right here would mean a right created by the Constitution or under any law. A complaint of the nature involved here in regards so called non-compliance of the demolition order passed by the Development Authority in relation to the third person will not fall to be within the ambit of the definition of a right as contained in part-3 of the Constitution of India.
Secondly, for the purposes of enforcement of a writ of mandamus as per the law, which has been laid down by the Hon'ble Apex Court in catena of judgments is that there was a statutory duty casted upon the public authority, to do an act provided under the statute, and the same despite of the prayer made to them, has not been performed by the public authority, which is not the case at hand. The status of the petitioner happens to be that of the complainant and an independent individual as he has shown himself to have submitted a complaint on 13.06.2012 before the Development Authority as against the existing construction of respondent no. 4. A reference of judgment in the case of 'State of Manipur & Others vs. Y. Token Singh & Others' reported in 2007(5) SCC 65 is taken into consideration. Paragraph 18 of which are quoted hereinbelow:
"18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange."
Another judgment in the case is that of 'State of Bihar & Others vs. Amrendra Kumar Mishra' reported in 2006(12) SCC 561 is referred and paragraphs 15 & 17 of it are quoted hereunder:
"In A. Umarani v. Registrar, Coop. Societies this Court rejected a similar contention upon noticing the following judgments: (SCC pp. 131-32, paras 69)
"69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is stated: (SCC p. 144, paras 36-37) '36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision."
It is now also well settled that in absence of any legal right, the Court should not issue a writ of or in the nature of mandamus on the basis of sympathy."
Paragraph 17 of the judgment in the case is that of 'National Textile Corpn. Ltd. & Others vs. Haribox Swalram & Others' as reported in 2004(9) SCC 786 is also quoted hereunder for reference:
"17. We are also in agreement with the view taken by the learned Single Judge that the writ petition which was filed in December 1989 was highly belated as the claim of the writ petitioners had been categorically refuted by the letter dated 7.11.1990 by the Director Finance on behalf of National Textile Corporation (South Maharashtra). The petition was therefore liable to be rejected on this ground alone. That apart, the prayer made in the writ petition is for issuance of a writ of mandamus directing the appellant herein to supply the goods (cloth). It is well settled that in order that a mandamus be issued to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the Statute to enforce its performance. The present is a case of pure and simple business contract. The writ petitioners have no statutory right nor any statutory duty is cast upon the appellants whose performance may be legally enforced. No writ of mandamus can, therefore, be issued as prayed by the writ petitioners."
Paragraph 13 of the judgment in the case of 'Union of India & Others vs. C. Krishna Reddy' as reported in 2003(12) SCC 627 is quoted hereunder for reference:
"13. It is well settled by a catena of decisions of this Court that a Writ of Mandamas can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (See Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh, AIR (1977) SC 2149 para 15; Lekharj Satram Dass Lalvani v. Deputy Custodian-cum-Managing Officer, AIR (1966) SC 334 and Dr. Umakant Saran v. State of Bihar, AIR (1973) SC 964."
Once the act does not provide for any forum for the complainant to invoke the appellate jurisdiction for an action under Section 27 or 28, this Court is of the view that the writ petition for enforcing a writ of mandamus to comply the order of demolition would not be tenable, because if at all their exists any relationship of an action or inaction, it would be vis-à-vis Development Authority or to the person to whom the notice/order has been issued and the complainant himself in his individual capacity under the Act, has not been provided any forum for the enforcement of demolition order passed in relation to the third person. The other independent person cannot have recourse to writ court for vengeance of their personal grievance under the garb of enforcement of the order passed by the Development Authority.
Thus, this Court is of the view that, at this stage considering the rival contentions raised by the petitioner as well as respondent supported by the report submitted by the Sub Divisional Magistrate, it entails an appreciation of an evidence and settlement of rights between the private parties. Admittedly, as far as the petitioner is concerned, the petitioner has got no right or title vested in him in the remaining part of the property of respondent no. 3, which has been left over after enforcement of the order dated 23.05.2012.
The any anticipated inaction, which has been contended and complained by the present petitioner, would not make the writ petition maintainable as it is exclusively within the domain of the development authority, which as per the report submitted by the Sub Divisional Magistrate, has been complied with and part declared unauthorized by the order dated 23.05.2012 has been already demolished, but, still since the issue involves an appreciation of evidence on record, this writ petition is dismissed without prejudicing the right of the petitioner to get settled his rights, if any, in relation to the property in question from the competent civil court.
Consequently, the writ petition is dismissed.
After conclusion of the judgment, the learned counsel for the petitioner has prayed for that the observation, which has been made in the order will effect the Suit, hence, it is clarified that in case if the petitioner prefers any Suit, the findings recorded in the present judgment may not prejudice the court below. Hence, a direction may be issued that the Suit would be decided without being prejudiced by the findings recorded in the present judgment.