Vinesh Kumar Sanghal vs State of Uttarakhand and Others

Tarun Agarwala, J.—Heard learned Counsel for the parties.

The Petitioner has filed this instant public interest petition against the proposed construction to be made by the Nagar Palika Parishad, Mussoorie pursuant to the advertisement dated 19th July, 2009, published in the local newspaper ''Mussoorie Times''. It is alleged that the proposed construction of shops, Marketing Complex and Parking lots, was in violation of the Uttar Pradesh Urban Planning and Development Act, 1973 and the Forest Conservation Act, 1980 as well as against the various orders passed by the Supreme Court of India particularly in the matter of T.N. Godavarman''s case. The Nagar Palika Parishad filed their counter affidavit initially justifying the stand that the proposed construction was required in order to locate and relocate the hawkers who were peddling their goods and wares on the Mall and that there was a need to rehabilitate them. Subsequently, the Executive Officer of the Nagar Palika Parishad has filed an affidavit today alleging that the Nagar Palika Parishad has taken a policy decision to withdraw all the proposed construction as per the impugned advertisement dated 19th July, 2009. The Executive Officer was asked to place the policy decision of the Nagar Palika Parishad and on this, the Court was informed that the matter would be placed before the Nagar Palika Parishad in its next meeting to be held on 26th October, 2010, where a formal proposal would be passed. The Court is constrained to observe that a false affidavit has been filed by Shri Rohtash Sharma, Executive Officer of the Nagar Palika Parishad, Mussoorie. When there is no resolution of the Nagar Palika Parishad, the Executive Officer on its own, has no power to withdraw the advertisement nor does he have the power to make a statement that the Nagar Palika Parishad has taken a policy decision.

Since a statement has been made by the learned Counsel for the Petitioner that the impugned advertisement will be withdrawn by the Nagar Palika Parishad, we accordingly dismiss the writ petition, and in the event, the advertisement is not withdrawn by the Nagar Palika Parishad in its next meeting to be held on 26th October, 2010, it would be open for the Petitioner to file a recall application immediately.

Before parting, we would like to make it clear that the contention of the Nagar Palika Parishad that they will submit a fresh proposal for the proposed construction after taking permission from the relevant authorities. In this regard, the Court is of the opinion that no construction can be made which will encroach the existing road under any circumstances. The cutting of the hillside can only be done under extreme urgency and after assessing the environmental impact on such construction to be taken from the Appropriate Authority. The Court is further constrained to observe that when the Court directs certain Officers to be present, invariably the Officers should make themselves available to assist the Court for the purpose for which they were called. The exemption of personal appearance can be done in exceptional circumstances on cogent reasons, which the Court finds that the same was lacking in the case of the Vice Chairman of Mussoorie Dehradun Development Authority. Since the petition is being dismissed, we are not expressing any opinion at this stage. The personal appearance of the Officers namely Shri Vinod Kumar Suman, Secretary, Mussoorie Dehradun Development Authority and Shri R.K. Sudhanshu, Vice Chairman, Mussoorie Dehradun Development Authority, who are present in the Court, is dispensed with.

Let a copy of the order be sent by the Registry to the Chief Secretary, State of Uttarakhand, for necessary information and action within two weeks.