Ashok Kumar Sarin vs Municipal Board, Dehradun And … on 18 August, 1992

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Allahabad High Court
Ashok Kumar Sarin vs Municipal Board, Dehradun And … on 18 August, 1992
Equivalent citations: AIR 1993 All 70, (1993) 1 UPLBEC 33
Bench: R S Dhavan


ORDER

1. The petitioner owns a property identified as quzer No. 6/10 Bhagwan Das Quarter, Dehra Dun. He contends that he had submitted a building plan before the Municipal Board, Dehra Dun, respondent No. 1 and that the building plan was sanctioned by resolution No. 11-376/196970 dated May 7, 1970.

2. The petitioner contends that one Mahendranath objected to the sanction of the plan and filed an appeal No. 14 of 1970 in the court of the Additional District Judge (E), Dehra Dun and the latter set aside the sanction of the plan and remanded the case to the Municipal Board, Dehra Dun for examination afresh.

3. In between one B.S. Saluja, respondent No. 2 filed a suit against the petitioner seeking an injunction for a relief that unauthorised construction by the petitioner be demolished and the petitioner be restrained from making other constructions. The suit was decreed. In Appeal No. 99 of 1972, allowed on June 14, 1976 the Additional District and Sessions Judge, Dehra Dun set aside the decree of the trial court that the construction as alleged in the suit be not

demolished but the petitioner continue to be restrained from carrying out any further constructions. These facts are given in the petition. The judgments of the trial court and the appellate court have been appended to the record of the writ petition.

4. The Municipal Board, Dehra Dun
served notices under S. 186 of the U.P. Municipalities Act, 2 of 1916 on the petitioner. The notice is dated November 19, 1971 (Annexure 3 to the writ petition). The notice alleged that an open planned area of 429 Square feet has been reduced to only 76 square feet and that this action of the petitioner was against the bye laws. The Municipal Board required the petitioner to remove the construction, and further directed the petitioner not to carry out more constructions. The petitioner engaged the Municipal Board in correspondence taking various legal pleas justifying the construction he had made. The Municipal Board retained its decision.

5. The petitioner filed two appeals before the Chief Judicial Magistrate, Dehra Dun being appeal Nos. 11 and 20 of 1972. One appeal was against the notice requiring the petitioner to demolish the raised constructions and the other appeal was against the order dated May 23, 1972 by which the Municipal Board rejected building plan of the petitioner. The appeal against the notice was rejected as being beyond limitation and in the other appeal the Chief Judicial Magistrate sanctioned the construction plan (reference paper No. 4 on the Municipal Board’s file) but the contention of the Board rejecting the modified plan by its order of May 23, 1992 was upheld by granting an opportunity to the appellant to present a new plan in accordance with the bye laws of the Board for construction.

6. Aggrieved by the order in appeal No. 20 of 1972 dated May 6, 1978, Annexure 9 to the writ petition, the petitioner has filed this petition, in effect, seeking a relief that the map as presented with modifications be treated to be sanctioned. What the petitioner desires this court today is to negate the directions of the appellate authority to relieve the petitioner from submitting a new plan

showing the correct area of construction in accordance with the bye laws of the Municipal Board.

7. This was an ill advised petition.

8. This court cannot sanction the building plan as there are issues that the petitioner may have transgressed, the limits of the bye laws and made constructions unauthorisedly. The appellate authority has committed no error in requiring the petitioner to submit a new plan strictly in conformity with the bye laws. The petitioner cannot resist this direction of the appellate authority. It appears from the record that the petitioner has not given the area of constructions with exactness and precision. It is an obligation on the local authority in charge of urban planning to know the extent and existence of constructions carried out by any person. The appellate authority has mentioned in its order that the petitioner drew out plans of the constructions to seek sanction in accordance with law.

9. The price of urbanisation is habitat discipline, failing which the result will be chaotic urban jungles. Thus, this court shall not interfere in the present writ petition. The petitioner shall submit a revised plan as directed by the appellate authority before the Municipal Board before 31 October, 1992. The Municipal Board, thereafter, shall have the plans examined. What can be sanctioned strictly in accordance with the bye laws will be sanctioned and if there be constructions made unauthorisedly and beyond permissible limits, such constructions cannot be compounded, Land use on which constructions are prohibited and is to be left open, the reservation of such land cannot be changed nor violated, AIR 1974 SC 2177; K. Ram Das Shenoy v. Udipi Municipality. Likewise set backs from a street or between buildings cannot be breached. All these are illegalities in urbanisation which are incurable.

10. Thus, the Municipal Board, Dehra Dun, (now the Nagarmahapalika) will be within its rights, if incurable illegalities exist to require the petitioner to remove, or else remove the unauthorised constructions.

11. The petition is dismissed with costs.

12. Petition dismissed.

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