JUDGMENT
M.M. Ghildiyal, J.
1. By means of this petition the petitioners have challenged order dated 22-10-2002 by which the sanction of map No. C-12/2000-2001 was cancelled and order dated 4-4-2003 passed by the Secretary, Mussoorie Dehradun Development Authority, Dehradun directing the petitioner to submit revised map for compounding as per existing bye-laws.
2. Heard Sri L. P. Naithani learned Senior Counsel assisted by Sri Sharad Sharma learned counsel for the petitioner and Sri S. Dhuliya learned counsel for the respondents.
3. The” facts of the case, as narrated by the petitioner, are that the petitioners are owners of the property bearing Municipal No. 59 Gandhi Road, Dehradun, They have acquired the ownership through registered sale deed dated 19-12-2001 from its erstwhile owners. Initially the said property belonged to Sri Abul Fazal Ansari, Sri Mumtaz Ahmad Ansari, Abdul Bari, Sri Mohd. Aslam and Sri Jamshed Iqbal residents of Raza Road, Dehradun.
4. The aforesaid co-owners executed registered agreement of sale dated 31-8-1998 for about 7.5 bighas land in favour of Mr. Ashok Garg and Mr. Kishore Kumar Garg resident of 72 Rajpur Road, Dehradun. The vendors of the agreement of sale on the behest of vendees as they wanted to construct a multi-commercial complex submitted map for seeking sanction from the respondent No. 2 under the. provisions of Section 14 of the U. P. Urban Planning and Development Act, 1973, in early 2000. The respondent No. 2 after inspecting the spot approved the map and worked out the development charges amounting to Rs. 8,95,416.00 vide order dated 9-6-2000 and directed the owner of the property to deposit 1/3rd amount of the development charges prior to sanction and the balance amount may be paid thereafter in six equal instalments. In compliance of the aforesaid order the proposed vendees deposited the amount of Rs. 3 lacs towards development charges in the office of respondent No. 2 on 26-7-2000. The map was sanctioned by the respondent No. 2 vide order dated 27-7-2000. In the sanction letter it was specifically stated that the balance amount of Rs. 5,95,416.00 shall be deposited in six instalments. A copy of letter dated 27-7-2000 is annexure 4 to the writ petition. A sum of Rs. 3 lacs towards the balance amount of development charges was deposited on 25-4-2000 by the vendees on behalf of erstwhile owners and Rs. one lac on 19-10-2001. On 19-12-2001 a registered sale deed was executed in favour of petitioner in respect of 1051.32 square meters land.
5. After the execution of registered sale deed dated 19-12-2001 petitioner started development/constructions over the land as per sanctioned map. In the mean time it appears that alleged complaint was made by one of the erstwhile owner before the respondent No. 2 on 28-12-2001 stating therein that their signatures have been forged and fabricated while seeking the sanction of the said map. The respondent No. 2 issued notice dated 3-4-2002 to the petitioners under Section 27(1) of the Act stating therein that the petitioner could not show the sanctioned map on demand to its concerned officials at the site and case No. C-119/S-7-2002 was instituted against the petitioners. The petitioners deposited the copy of sanctioned map in the office of respondent No. 2. In the mean time the construction on the land had reached to the basement roof level.
6. Earlier map was sanctioned for construction of ground floor with basement and parking facility. By the end of last week of April 2002 the construction work of basement and ground floor was completed and the same was in consonance of sanctioned map. On 24-4-2002 the petitioners submitted revised map in the office of respondent No. 2 for construction of first and second floor. The said map was also in consonance and in conformity with the provisions of the Act, bye-laws and policy decisions taken by the respondents on 14-2-2003.
7. The respondent No. 2 issued another notice to the petitioners under Section 27(1) and 28(1) of the Act on 1-5-2002 on the ground that the petitioners have constructed first floor without the sanction of map and consequently instituted case No. C-209/S-7 of 2002 against the petitioners. The respondents asked the petitioners on 20-5-2002 to produce “no objection certificate” from the Public Works Department, fire fighting officer and structure design which was submitted by the petitioners on 1-6-2002 in the office of the respondent No. 2. The petitioners were further asked by the respondents that the revised map submitted by the petitioners would be sanctioned only after depositing the amount of Rs. 2,85,272.00. The petitioners deposited a sum of Rs. 50,000.00 on 25-6-2002 and Rs. 2,35,272.00 on 8-7-2002. “On one hand the petitioners were asked to deposit the aforesaid amount and at the same time on the other hand constituted a committee vide order dated 23-7-2002 to probe the issue of alleged fabrication of signature and the committee by its decision dated 31-10-2002 alleged to have recommended the cancellation of the map without affording an opportunity of hearing to the petitioners though the affidavits of rest of the three erstwhile owners of the property, admitting that they filed the said map which is under dispute for seeking the approval of the respondents to carry out the proposed construction on the land at the behest of the petitioners, was on record.
8. The petitioners submitted another application on 2-12-2002 along with compounding and revised map before the respondents with a request to compound the construction already carried out by them and with a further prayer of the sanction of revised map. However, no action was taken by the respondents in respect of compounding and by order dated 4-4-2003 the Secretary, Mussoorie Dehradun Development Authority has asked the petitioners to submit compounding map, which is order, impugned in the writ petition. On 25-4-2003 this Court passed the following order :–
“Heard learned counsel for the parties. For the grievance raised in the writ petition learned counsel for the parties agreed that the parties will explore the possibility of compounding according to law, even if necessary ignoring the order dated 4-4-2003 and revised map said to have been submitted on 24-4-2002.”
9. The case was listed against on 18-6-2003 and after hearing the parties the following order was passed.
“It appears that in view of the order dated 25-4-2003 no serious efforts have been made to have the matter compounded according to the bye-laws and the procedure applicable thereto in regard to the construction made. Considering the dispute involved in the petition further opportunity is given so that the petitioners may initiate the possibility of compounding with the respondents’ authority and in the talks all the possibilities shall be explored by the respondent authority in the presence of the petitioners. Considering the urgency a date 23-6-2003 is fixed for the talks between the petitioners and the respondent authority in the office of Vice Chairman. Put up on 26-6-2003.”
10. On-26-6-2003 the case was further taken up. Learned counsel for the respondents informed the Court that the Vice Chairman, Mussorie Deharadun Development. Authority has passed an order on 26-6-2003 stating therein that in compliance of the order dated 18-6-2003 of Hon’ble High Court the Development Authority has perused the documents available in the file in the absence of the owner on 24-6-2003 and reached to the conclusion that in case Sri Kishore Garg submits a revised map under the existing regulations and bye-laws the development authority may consider compounding of the construction already made.
11. The Vice Chairman has taken the decision in the absence of the petitioners. The petitioners have filed an affidavit before this Court that in compliance of the order passed by the Hon’ble Court on 18-6-2003 the petitioner moved an application on 21-6-2003 before the Vice Chairman that he may be informed about the venue and the time for the meeting as directed by the Hon’ble Court. This letter was received in the office of respondent No. 2 on the same date. Though he was not informed about the venue and time. He was present in the office of respondents right from 10.30 a.m. to 3.30 p.m. on 23-6-2003 and requested the Vice Chairman to hear him on the issue. At 10.30 a.m., 12.30 p.m., 2.30 p.m. and 3.30 p.m. he has sought time by moving applications. All these applications are filed by the petitioners along with affidavit before this Court. The applications have been received by the office of respondent No. 2, which is clear from the seal, and the signature put on the applications. However, he was not afforded time by the respondents. The respondents while taking decision has stated that in the order that the petitioner was present in the office on 23-6-2003 but the concerned file was not available because the same was in the office of Advocate of the Development Authority and the Advocate had gone out of India. In the circumstances the petitioners were asked to wait till the file is received from the office of Advocate of the authority. It is alleged that the file was received at 4.30 p.m. by the time the petitioner has left the office of the respondents. The petitioner was contacted on telephone and was asked to represent on 24-6-2003 but he did not turn up on 24-6-2003. Learned Counsel for the petitioners has submitted that he was present in the office through out the day on 23-6-2003 and only when he was categorically denied permission by the office to meet the Vice Chairman he was compelled to leave the office. He has not received any communication thereafter as alleged.
12. From the facts it appears that no serious efforts were made by the respondents to resolve the dispute. The High Court on 18-6-2003 had fixed the meeting of the petitioners and the respondents for 23-6-2003. In spite of this order the respondents did not care even to collect the file from the office of Advocate of the authority till 4.30 p.m. on 23-6-2003.
13. During the course of arguments the learned counsel for the petitioner was agreed for compounding and the learned counsel for the respondents was also not opposed to it. The only dispute was that the petitioners were insisting upon the compounding on the basis of bye-laws which were in force when the map was sanctioned whereas the learned counsel for the respondents was insisting compounding on the basis of bye-laws which are in existence today and that is why the Court insisted that since both the parties are ready for compounding they may resolve the dispute.
14. The first ground of attack by the learned counsel for the petitioners is that the respondents without providing any opportunity of hearing to the petitioners had cancelled the map vide order dated 22-10-2002. The learned counsel for the petitioners has submitted that Once the map has been sanctioned the authority has no power to review the order of sanction.
15. Learned counsel for respondents Sri Dhuliya has submitted that in case the sanction has been obtained by fraud, concealment or misrepresentation the authority can revoke the sanction. He has further submitted that the map was submitted before the authority with signature of proposed vendors. After the map was sanctioned a complaint was filed by one of the vendor that in the application seeking sanction of map signatures are forged. In para 18 of the counter affidavit the respondents has submitted that the said map which was sanctioned on 27-7-2000 was rejected on 22-10-2002 pursuant to the complaint filed by Sri Abul Fazal Asari and others.
16. It is not disputed by either of party that the map No. C-12/2000-2001 for construction of ground floor and basement was sanctioned by the authority on 27-7-2000. Prior to sanctioning the map the authority on 9-6-2000 worked out the development charges amounting to Rs. 8,95,416.00 and directed to deposit 1/3rd amount at the time of sanction of map and to deposit the balance amount in six instalments. The vendees deposited on behest of vendor Rs. 3 lacs on 26-7-2000, 3 lacs on 25-10-2000 and Rs. one lac on 19-10-2001. The alleged complaint by the vendor is of 28-12-2001. During all this period all the correspondence commenced between the M. D. D. A. and the vendor. The sale deed of the land was executed on 19-12-2001 and on the same date two of the vendors informed the M. D. D. A. that they have sold the land covering area 1051.32 square meters and as such rest of the balance amount towards development charges may be realized from the vendees. At present we are not going into the question whether on the application for sanction of map signatures were forged on not. The question cannot be effectively disposed of in the writ petition under Article 226 of the Constitution. The question is foreign to the scope of Article 226 of the Constitution. It cannot be decided just on affidavits. In fact, these matters should be tried in regular civil proceedings. In any case it is not disputed that the petitioners were not given opportunity prior to cancellation of sanctioned map.
17. Learned counsel for the petitioners has placed reliance on the judgment of Mahant Sri Ishwar Dasji v. State of U. P., reported in 1994 (24) All LR 545 wherein the Division Bench of Allahabad High Court has held that once the map is sanctioned it cannot be cancelled because the provisions of the act do not empower the authority to review of order of sanction unless the sanction is obtained by fraud, concealment or misrepresentation. In that circumstance too the sanction cannot be cancelled without giving opportunity of hearing to other parties. He has further placed reliance on the decision of Jagdish Prasad Dubey v. Allahabad Vikas Pradhikaran, reported in 1992 All C J 1009 : (1993 All LJ 1120).
18. Learned counsel for the respondents has submitted that the said order of rejection passed under Section 15 of the U. P. Urban Planning and Development Act, 1973. In case the petitioner is aggrieved he has an alternative remedy by way of filing an appeal under Section 15(5) of the aforesaid Act to the Chairman and as such the writ petition is not maintainable. Learned Counsel for the petitioner has submitted that no appeal lies against the impugned order. He has further submitted that even if there is alternative remedy there is no absolute bar.
19. It is well settled in law that availability of alternative remedy is no absolute bar for entertaining petition under Article 226 of the Constitution of India. Where the impugned order is found to be wholly illegal and without jurisdiction the Court can entertain a petition and can issue appropriate writ or direction. In the instant case, the order cancelling the map has been passed without affording opportunity of hearing to the aggrieved party and therefore, the present petition cannot be thrown out on the ground of availability of alternative remedy.
20. Learned counsel for the respondents has further submitted that the Development Authority is agreeable for compounding of the construction on the basis of regulations and bye-laws of the authority as existed today. On the contrary learned counsel for the petitioners has submitted that compounding should be made on the basis of the rules, regulations and bye-laws as existed on the date of sanction of man which has been cancelled by the authority illegally.
21. Learned counsel for the petitioners in para No. 36 of the writ petition has further submitted that he had submitted revised plan as per the policy of the development authority on 24-4-2002 for construction of first floor and second floor. As per Clause 3.1.3.2(1) of the bye-laws there is a deeming provision to the effect that the map once filed under Sections 14 and 15 of the Act and it is not sanctioned or considered within 90 days from the date of its filing it will be deemed to have been sanctioned. Therefore, the construction of the petitioners raised after lapse of said period cannot be said to be an unauthorized construction. In the counter-affidavits the respondent has submitted its reply in para No. 35. The reply is very vague.
22. For the reasons recorded above we allow the writ petition quash the order dated 22-10-2002 and 4-4-2003 and direct the respondent authority for compounding the construction in accordance with law if the construction is within the technical parameter of the bye-laws existing on the date of sanction of map.