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Judgment
(per Hon’ble Justice Sri Manoj Kumar Tiwari, A.C.J.)
This intra-court appeal is filed by the writ petitioner challenging the judgment and order dated 06.05.2019 passed by learned Single Judge in Writ Petition (M/S) No.134/2018. By the said judgment, the writ petition filed by the appellant was dismissed by holding that writ petition alleging non compliance of demolition order is not maintainable, as demolition of a building is within exclusive domain of development authority and as per the report of Sub Divisional Magistrate, demolition has been carried out. However, liberty was given to the appellant to get his rights, if any, settled in relation to the property in question from the competent civil court. The relevant extract of the impugned judgment is reproduced below:-
“22.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.
23.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.
24.Consequently, the writ petition is dismissed.
25.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.”
The appellant contended before the learned Single Judge that a demolition order was passed against the respondent no.3 by Secretary, MDDA on 23.05.2012, however, the same has not been executed and the structure raised by respondent no.3 has not been demolished. Learned Single Judge called a report from Sub Divisional Magistrate concerned. Extract of that report is reproduced in para 7 of the impugned judgment. Perusal of the extracted portion of report indicates that demolition order was carried out and only a small portion of the structure was left on the site. Appellant wanted the remaining structure to be removed so that his property becomes commercially viable. Learned Single Judge held that such relief cannot be granted in a writ petition as it is purely a civil dispute and accordingly liberty was granted to the writ petitioner (appellant) to approach the competent civil court.
We do not find any reason to interfere with the judgment rendered by learned Single Judge. Even though appellant’s property is at the back side of the structure in question, which is abutting Dehradun-Chakrata Road, and appellant’s property would become commercially viable when the structure belonging to respondent no.3 is removed from the site, however, this alone will not create any right in favour of appellant to file a writ petition for removing the remaining structure of respondent no.3. The structure which appellant wants to be removed is standing over the land belonging to respondent no.3 and Mr. Rahul Consul, learned counsel appearing for respondent no.3, submits that such remaining structure is not violating any provision of the building bye-laws of the MDDA. Thus, the remaining structure of respondent no.3 cannot be directed to be removed, merely because it is creating hurdle in the way of appellant developing his property for commercial purpose.
Learned Single Judge was, thus, right in not interfering in the matter. We do not find any scope for interference. The appeal fails and is dismissed accordingly. We, however, make it clear that, if any proceeding is pending before the Commissioner in appeal under the provisions of the Uttarakhand Urban and Country Planning and Development Act, 1973, the same shall be decided on merit uninfluenced by any observation made by us in this order.