Rajesh Bhatt vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

Heard Shri Shobhit Saharia, learned Counsel for the petitioner, Shri B.S. Parihar, learned Standing Counsel for the State/ respondents, and, with their consent, this writ petition is being disposed of at the stage of admission.

The petitioner has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the impugned order dated 11.10.2018 issued by the Executive Engineer, PWD Construction Division, Almora.

Facts, to the limited extent necessary, are that the petitioner purchased an extent of 12 mutthi land by sale deed dated 02.07.2007, and made an application under Section 143 of the UPZA & LR Act seeking permission for utilizing the said land for construction of a dwelling unit, and permission was granted to him vide order dated 21.02.2011. This piece of land is situated in Village Mauja Fulai Jageshwar near Jageshwar Mandir which has been declared as a regulated area of a protected monument.

The petitioner claims to have obtained permission from the National Monuments Authority under the Ministry of Culture, Government of India vide proceedings dated 25.10.2017; and permission from the State Government to construct his building in accordance with the sanctioned plan. Based on this order dated 08.12.2017, the petitioner claims to have commenced construction. While matters stood thus, a Division Bench of this Court treated a letter as WPPIL No.163 of 2018 and, by its order dated 28.09.2018, issued interim directions amongst which was that further construction of Aartola Jageshwar Motor Marg was banned till byelaws were framed for construction either by extending the provisions of the existing laws, or by creating a Special Area Development Authority, for planned construction.

Based on this order, the Executive Engineer issued proceedings dated 11.10.2018 directing the petitioner to stop construction on the ground that the said motor road had been notified, to the extent of 33. 528 meters on either side from the centre point of the road, under the U.P. Roadside Control Act, 1945; and construction of the house, within the aforesaid boundaries, was being made without permission from the competent authority. The petitioner was directed to immediately stop the construction of the house, and was informed that, if he failed to stop construction, proceedings would be initiated against him.

Shri Shobhit Saharia, learned Counsel for the petitioner, would submit, not without justification, that the earlier interim order dated 28.09.2018 merged in the final order passed by the Division Bench in WPPIL No. 163 of 2018 dated 01.11.2018, wherein the Division Bench had, with respect to construction of the Aartola-Jageshwar Motor Road, directed the Assistant Engineer, Construction Division, Public Works Department, Almora to ensure that no construction was carried out on Aartola-Jageshwar Motor Road in violation of the U.P. Roadside Control Act, 1945 as adopted by the State of Uttarakhand.

Learned Counsel would further submit that, in terms of the said Act, construction within the territorial limits of a village was excluded from its purview; since the Division Bench had directed action to be taken as per the U.P. Roadside Control Act, 1945, it was only if construction was being made contrary to the provisions of the said Act would the respondent be justified in interfering with the said construction; since the construction being made by the petitioner is not in violation of the said provision, interference by the Assistant Engineer is illegal and unjustified; the competent authority under the said Act is the District Collector; and the Executive Engineer lacks jurisdiction to direct the petitioner to stop construction.

We were initially inclined to direct the respondents to file their counter-affidavit, and to defer hearing of the writ petition by a period of four weeks. Shri Shobhit Saharia, learned Counsel for the petitioner, would suggest that, instead, the petitioner be permitted to make a representation to the competent authority, i.e. the District Collector, furnishing details of the construction made by him, and to establish that such construction is in accordance with the U.P. Roadside Control Act, 1945; and it would suffice if this Court were to direct the Collector to take action strictly in accordance with law and the order passed by the Division Bench in WPPIL No. 163 of 2018 dated 01.11.2018.

Shri B.S. Parihar, learned Standing Counsel for the State/ respondents, would submit that, instead of keeping the writ petition pending on file on the record of this Court, such an order be passed.

Suffice it, in such circumstances, to permit the petitioner to make a representation, to the competent authority i.e. the District Collector, within two weeks from today furnishing details of the permission obtained by him from the National Monuments Authority under the Ancient Monuments and Archaeological Sites and Remains Act, 1958; the permission obtained from the Gram Panchayat for construction of the said building, and to establish that the provisions of the U.P. Roadside Control Act, 1945 do not bar the construction being made by him. If any such representation is made by the petitioner, within two weeks from today, the District Collector shall consider such a representation in accordance with law, as well as the order passed by the Division Bench in WPPIL No. 163 of 2018 dated 01.11.2018, and shall thereafter pass a reasoned order within four weeks from the date of receipt of the petitioner's representation, and communicate his decision to the petitioner.

Till the District Collector passes a reasoned order as directed hereinabove, the Executive Engineer shall not take any coercive steps to demolish the existing construction, and the petitioner shall not raise any further construction over the said site.

The writ petition stands disposed of, accordingly. No costs.