Uttarakhand High Court
State Of Uttarakhand And Others vs Ms Abl Projects And Others on 1 October, 2015
Equivalent citations: AIR 2016 UTTARAKHAND 23, (2016) 1 UC 79
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 489 of 2015
State of Uttarakhand and others ......... Appellants
Versus
M/s ABL Projects and others ......... Respondents
Present: Mr. U.K. Uniyal, Advocate General assisted by Mr. A.S.
Rawat, Addl. Advocate General, Mr. Subhash Upadhyay, Chief
Standing Counsel and Mr. Sandeep Kothari, Brief Holder for
the State/appellants.
Mr. Arvind Vashisth, Sr. Advocate assisted by Mr. Ashish
Gupta and Mr. Vikrant Gambhir, Advocates for respondent
No.1.
Mr. Rahul Consul, Advocate for respondent Nos. 2 & 3.
Coram : Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
JUDGMENT
Date: 1st October, 2015 K.M. Joseph, C.J. (Oral) Appellants are respondent Nos. 1, 2 3 & 6 in the writ petition. The prayer sought by the writ petitioner in the writ petition was as follows:
"To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16th March, 2015 passed by the Vice Chairman, Mussoorie Dehradun Development Authority/ respondent No.4 (as contained in Annexure-1), order dated 7th March, 2015 passed by the District Magistrate, Dehradun/ respondent No.3 (as contained in Annexure-2) and order dated 3rd March, 2015 passed by the District Magistrate, Dehradun/ respondent No.3 (as contained in Annexure-3)."2
2. Briefly put, the case of the writ petitioner before the learned Single Judge was as follows:
Writ petitioner is a partnership firm. It is Bhumidhar/owner of various bits of land, which are specifically mentioned in paragraph -3 of the writ petition. The land was initially purchased by a Firm, namely, B.D. Agarwal project, which is mentioned in paragraph 4 of the writ petition. Thereafter it is mentioned that the mutation took place in the name of the petitioner and the petitioner is a lawful owner. It is, in short, their case further that they applied for getting a layout plan sanctioned in the name of "Panache Valley" from the Mussoorie Dehradun Development Authority (MDDA), of which body the Vice Chairman and Secretary, were respondents Nos. 4 & 5 in the writ petition. The petitioner alongwith the co-applicant had these lands which were lying contiguously in Dehradun. It is specifically averted that they did not include Government land or Gaon Sabha land. It is their case that there is no provision under the building byelaws of MDDA to seek 'NOC' from the Collector. The MDDA itself sought sanction/NOC from the District Magistrate by letter dated 30.08.2012. 'NOC' was issued by the office of 3rd appellant, namely, the District Magistrate. After the layout was sanctioned, the writ petitioner and other co-applicant developed their lands.
Thereafter, after lapse of two & half years some of the officers of respondents have stated raising demand for extraneous consideration and warned the promoters of Panache Valley with threat of using their powers unless the illegal demands are fulfilled and they will not allow the promoters to complete the project on one pretext or the other. Suffice is to that they received to begin with Annexure-1, which is dated 16th March 2015 from the Vice Chairman of the respondent MDDA. English translation of the same provided by the learned counsel is hereunder:
3"Office of Musoorie Dehradun Development Authority Transport Nagar, Saharanpur Road,Dehradun Letter 2553/MDDA/2015 Dated 16 March, 2015 To, M/s B.D. Agarwal Projects and others Through Mr. Deepak Pundir 197/B,Rajpur Road, Dehradun.
Subject: In regard to the immediate suspension of sanction layout no. 0003/11-12 by the Development Authority.
District Magistrate, Dehradun has recalled/withdrawn the NOC no. 503/L.A.C./2012 dated 30.08.2012 with immediate effect vide its letter no.397/A.L.-Camp-2015 L.A.C. dated 07.03.2015 issued by A.D.M. (E), Dehradun, in respect o sanctioned layout no. 0003/11-12. In furtherance of the said letter the sanctioned layout is being suspended with immediate affect and further it is directed to stop the construction work till further orders.
Enclosed: As above.
Vice Chairman, Mussoorie Dehradun Development Authority, Dehradun C.C.
1. Hon'ble Chairman Board of Revenue Dehradun
2. Secretary, Revenue Uttarakhand Secretariat, Dehradun
3. District Magistrate, Dehradun Vice Chairman, Mussoorie Dehradun Development Authority, Dehradun"
The said communication was based on the letter dated 07.03.2015. The said communication in the translated version, as provided by the learned counsel, reads as follows:-
"Office of District Magistrate,Dehradun Letter no. 397/A.L.-Camp-2015 L.A.C. Dated 07 March, 2015 Secretary, Mussoorie Dehradun Development Authority, Dehradun.
Kindly take note of letter no. 394/2005/Camp A.L. dated
03.03.2015 issued by the Office of District Magistrate, Dehradun.
4It is to bring to your knowledge the NOC no.
503/L.A.C./2012 dated 30.08.2012 issued by ADM (E) Dehradun, has been recalled/withdrawn as the said NOC was granted without the approval of competent authority (District Magistrate) and that the enquiry in progress in respect of some disputed khasra nos. (Copy Annexed) It is also to bring to your knowledge that the enquiry is in progress in respect of the following disputed khasra numbers at village Challang Pargana Parwadun,Tehsil Sadar, Dehradun and not to sanction any map on the following khasra nos. till further order.
Ravinath Raman District Magistrate Dehradun C.C.
1. Hon'ble Chairman, Board of Revenue in compliance of direction received on phone.
2. Secretary, Revenue Department Uttarakhand Secretariat Dehradun.
Ravinath Raman District Magistrate Dehradun"
2. According to the writ petitioner, the impugned orders are unsustainable and they were issued without any notice to them; there is no power to do that and they have no jurisdiction to pass these orders.
3. Pleadings were exchanged. The learned Single Judge has allowed the writ petition.
REASONING OF THE LEARNED SINGLE JUDGE
4. The learned Single Judge took note of the facts and he further noticed that measurement of the land of the writ petitioner was done by two different teams of revenue department on two different dates. It is stated that in both exercises of measurement of land, it has come out that no government land has been encroached by the writ petitioner. The learned Single Judge thereafter proceeds to take note of the argument that no opportunity was given to the writ petitioner. The learned Single Judge further referred to the 5 judgment of the Apex Court in State of U.P. and others Vs. Maharaja Dharmander Prasad Singh, (1989) 2 SCC 505, in which the Apex Court has held as under:
"64. On the point of denial of natural justice, we agree with conclusion of the High Court, though not for the same reasons, that there has been such a denial in the proceedings culminating in the order of cancellation. The show cause notice itself an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia. On a matter of such importance where the stakes are heavy for the Lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of this case, have afforded a personal heating to the lessees. We, therefore, agree with the conclusion of the High Court that both the show cause notice dated 9.1.1986 and the subsequent order dated 19.4-1986 would require to be quashed, however, leaving it open to the statutory authority, should it consider it necessary, to issue a fresh show cause notice setting out the precise grounds, and afford a reasonable opportunity including an opportunity of personal heating and of adducing evidence wherever necessary to the Respondent-Lessees- In view of this liberty, reserved to the authority, it is necessary to set aside the findings recorded by the High Court on the merits of the grounds."
5. The learned Single Judge also referred to the judgment of the Apex Court in Mohinder Singh Gill & another vs. The Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405, wherein the Apex Court has held as under:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of in Commr. of Police, Bombday vs. Gordhandas Bhanji, AIR 1952 SC 16 "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer 6 making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
6. Further the learned Single Judge noted the arguments of the appellants as follows:
"13. Learned Additional Advocate General argued that the provisions of the Sections 143, 154, 166 & 167 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'UP Z.A. & L.R. Act') were flouted by the writ petitioner. The petitioner has obtained NOC without approval of the competent authority and by concealing the facts. As soon as the competent authority came to know that the petitioner had obtained NOC unlawfully by misguiding the officers, the NOC has been cancelled by the competent authority. Learned Additional Advocate General also argued that the provisions of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act of 1960) were also flouted by the petitioner and, therefore, the District Magistrate / Collector, Dehradun is enquiring into the matter. Learned Additional Advocate General further argued that the communication was received by the petitioner through the MDDA under the clandestine authority of the Additional District Magistrate, who had no authority to communicate with the MDDA. He also argued that, firstly, the MDDA should not have written to the Additional District Magistrate, Dehardun and, secondly, the Additional District Magistrate should not have made direct correspondence with the MDDA. If, at all, the Addl. District Magistrate was to communicate something to the MDDA, the same should have been done only after obtaining approval of the District Magistrate, Dehradun. Learned Additional Advocate General also submitted that the communication dated 30.08.2012 of the Addl. District Magistrate was a conditional approval and once it was gathered by the District Magistrate that something is fishy at the hands of the writ petitioner, therefore, he suspended ongoing construction work being carried out by the petitioner. It is also submitted by learned Additional Advocate General that the land on the spot is also not identifiable, inasmuch as, the Government land as well as the land of M/s Golden Forest Pvt. is also involved at the site, where the construction is going on under the aegis of 7 writ petitioner. The certificate thus issued by the Addl. District Magistrate was void ab initio and cannot be termed as 'sanction by the District Magistrate'."
7. Thereafter, the learned Single Judge proceeds to refer to the principle of natural justice not being followed resulting in a void decision and, therefore, the learned Single Judge proceeds to find that the order dated 07.03.2015 is void. Thereafter, it is relevant to refer to paragraph Nos. 18 & 19 of the judgment as under:
"18. Sub-section (9) of Section 15 of the U.P. Urban Planning and Development Act, 1973 provides the answer as below:
"15. Application for permission. -
(1) .......................
(2) ......................
(9) If any time after the permission has been granted under sub-section (3), the Vice Chairman is satisfied that such permission was granted in consequence of any material mis-representation made or any fraudulent statement or information furnished, he may cancel (read: 'suspend' in the context of this case) such permission, for reasons to be recorded in writing and any work done thereunder shall be deemed to have been done without such permission:
Provided that a permission shall not be cancelled (read: 'suspended' in the context of present writ petition) without affording to the person or body concerned a reasonable opportunity of being heard."
19. In the above sub-Section (9) of Section 15 of the Act of 1973, the words, viz, 'he may cancel such permission' be read as 'he may suspend such permission' in the present context and the words, viz, 'a permission shall not be cancelled' be read as 'a permission shall not be suspended', in as much as the impact of these words on the rights of the petitioner, so far as adherence to the principles of natural justice is concerned, is the same."8
And lastly, on the basis of said reasoning, the learned Single Judge issued the following directions in paragraphs 20 & 21:-
"20. A direction is, therefore, given to the State Government / District Magistrate to give a show cause notice to the petitioner and then pass a reasoned and speaking order according to law. It is made clear that this Court has not interfered with the ongoing inquiry, which is being carried out by the District Magistrate / respondent no.3 as of now.
21. The impugned order directing the suspension of ongoing construction work will, therefore, be deemed to have 'no-effect' till the inquiry, after following due process of law, is completed. The constructions, if any, made by the writ petitioner during the interregnum shall be governed by sub- Section (9) of Section 15 of the Act of 1973."
8. We heard learned Advocate General, Shri A.S. Rawat, learned Additional Advocate General and Shri Sandeep Kothari, Brief Holder for the appellants. We also heard Shri Arvind Vashisth, learned Senior Counsel with Shri Ashish Gupta and Shri Vikrant Gambhir for respondent No.1 and Shri Rahul Consul, learned counsel for the MDDA.
9. The appellants would contend that the matter is squarely covered by Section 28 of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the Act) and the learned Single Judge was not correct in placing reliance on Section 15 of the Act as such. Next, it is contended that the actual permission, which was granted under Section 15 contains certain conditions. Relevant condition in English translation reads as follows:
"12. If it is necessary to obtain no objection from any department, the applicant will be responsible for the same. In the event of objection from any department, sanction of layout plan will stand cancelled."9
10. It is submitted by the appellants that an inquiry is going on in regard to the land in respect of which permission was granted and there is a case that there is a clear violation of Section 154 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. It is, therefore, submitted that this is a case where the Additional District Magistrate gave 'no objection' and actually the District Magistrate was the person authorized to give the sanction and the inquiry is going on and this is a matter, which must be considered in the inquiry and till then the writ petitioner cannot be allowed to continue with the construction.
11. Per contra, Shri Arvind Vashistha, learned Senior Counsel would submit that actually a perusal of Section 15 of the Act would show that on the basis of the application after getting required permission from the various authorities, which includes, for instance, 'no objection' from the Fire Department and others, which are specifically stipulated as per law permission may be granted. He specifically would contend that there is no requirement in getting any 'no objection' from the revenue department in law, but for granting permission under Section 15 of the Act the Authority takes precaution of seeking 'no objection' from the revenue department to protect the interest of revenue. It is pointed out, in fact, by the learned counsel for the MDDA also that the procedure is that on receipt of the application 'no objection' is sought directly by the MDDA from the revenue department and the same procedure was followed in this case. In this case 'no objection' was, in fact, given by the Additional District Magistrate. He points out that there is no requirement in law that 'no objection' is to be given by the District Magistrate and the Development Authority acted upon on the 'no objection' of the Additional District Magistrate and thereafter has granted permission and, therefore, it is not legal on the part of the appellants to resort to the action impugned. It is also pointed out that actually inquiry is even, according to the 10 communication dated 07.03.2015, going on in respect of only certain survey numbers and there is no authority or power for the Authority to have cancelled the NOC granted or to keep the layout in suspension as was done.
12. Section 15 of the Act deals with the procedure for grant of permission under the Uttar Pradesh Urban Planning and Development Act, 1973. It, inter alia, provides in sub-section (3) as follows:
"15. Application for permission.--
(3) On the receipt of an application for permission under sub-section (1), the [Vice-Chairman] after making such inquiry as it considers necessary in relation to any matter specified in clause (d) of sub-section (2) of Section 9 or in relation to any other matter, shall by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission:
Provided that before making an order refusing such permission, the applicant shall be given a reasonable opportunity to show cause why the permission should not be refused:
Provided further that the [Vice-Chairman] may before passing any order on such application give an opportunity to the applicant to make any correction therein or to supply any further particulars of documents or to make good any deficiency in the requisite fee with a view to bringing it in conformity with the relevant rules or regulations.
[Provided also that before granted permission, referred to in Section 14 the Vice-Chairman may get the fees and the charges levied under sub-section (2-A) deposited]
13. No doubt, the proviso provides for right to Authority to refuse permission provided an opportunity of showing cause is given. Learned Senior Counsel for the writ petitioner relied on this proviso to contend that natural justice must be followed in a case 11 where the permission already granted is put in suspended mode and the controversial provision which is sub-section (9) of Section 15 of the Act, relates to the power to cancel permission which has been considered by the learned Single Judge. The provision relating to stoppage of work, which has already commenced, is vested under Section 28 of the Act, reads as follows :
"28. Power to stop development.--(1) Where any development in a development area has been commenced or continued in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section
14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted then, without prejudice to the provisions of Sections 26 and 27, the Vice-Chairman of the Authority or any officer of the Authority empowered by him in that behalf, may make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly.
(2) Where such development is not discontinued in pursuance of the order under sub-section (1), the Vice-Chairman or the said officer of the Authority may require any police officer to remove the person by whom the development has been commenced and all his assistants and workmen from the place of development within such time as may be specified in the requisition, and such police officer shall comply with the requisition accordingly.
(3) After the requisition under sub-section (2) has been complied with, the Vice-Chairman of the Authority may depute by a written order a police officer or an officer or employee of the Authority to watch the place in order to ensure that the development is not continued.
(4) Any person failing to comply with an order under sub-section (1) shall be punishable with fine which may extend to two hundred rupees for every day during which the non-compliance continues after the service of the order.
12(5) No compensation shall be claimable by any person for any damage which he may sustain in consequence of the removal of any development under Section 27 or the discontinuance of the development under this section.
(6) The provisions of this section shall be in addition to and not in derogation of, any other provisions relating to stoppage of building operations contained in any other law for the time being in force.
14. In this case, we have to notice certain features. We notice that the writ petitioner has not chosen to produce the actual permission, which was granted by the MDDA. Among other conditions dated 22.09.2012, condition No.12 is relevant, which we have extracted above.
15. No doubt, the District Magistrate has sent communication dated 03.03.2015 addressed to the MDDA seeking certain details, it appears. This is one of the communications, which is challenged by the writ petitioner, but more importantly, communication dated 07.03.2015 was issued by the District Magistrate and even a copy is not addressed to the writ petitioner, but the writ petitioner has challenged the same. From the same, we notice that the 'NOC', which has been granted by the Additional District Magistrate, has been recalled/withdrawn. The reason given is that it was granted without the approval of the competent authority, who is the District Magistrate and that an inquiry is in progress in respect of some disputed Khasra numbers, copy of which was annexed. From this, we arrive at the following conclusions. By the communication dated 07.03.2015, the 'NOC', which was granted by the Additional District Magistrate, has been recalled/withdrawn. This is not an order, by which as was sought to be made by the learned Advocate General, the order was placed in a state of suspension, but it is clearly stated that it is recalled and withdrawn and the reason given appears to be that 'NOC' was granted without the approval of the 13 competent authority. We may notice that actually there is no law in the form of any bye law or rule, which predicates that 'no objection' must be obtain from the District Magistrate as such. In fact, the case of the State would appear to be buttressed by the pleadings taken in the counter affidavit which are as follows :-
"4.1 That in reply to the contents of para 3 of the writ petition, it is submitted that the land of Khasra no.1237, 1240 and 1251 which is pertaining to Golden Forest Co. Ltd. and subject of case under Section 166/167 of U.P. Z.A. & L.R. Act, in regard to which the matter has been remanded to the Revenue Board, Uttarakhand by the Hon'ble Supreme Court, for disposal according to legal provisions, by its order dated 11.04.2011. Therefore, by the order of Revenue Board dated 21.10.2014 the subject matter has been st remanded to the Court of Assistant Collector, 1 Class (Sadar), Dehradun, for using a legal notice to all shareholders/kashtkars, who were related to alleged st subject matter in the court of Assistant Collector, 1 Class (Sadar), Dehradun till date.
8. That as regard the contents of para 7 of the writ petition, it is submitted that the NOC no. 503 / LAC/2012 dated 30.08.2012 was issued without approval of competent authority Collector and subsequently the same NOC letter was altered by striking out the last page, which was duly received by representative of the petitioner. It is also pertinent to mention here that by letter no.503/LAC/2012, the same office has issued NOC on 30.08.2012 and then attached a new amended page, signed on 03.09.2012 on the same dispatched number, without recording the changes on the note sheet but the Collector, who was not acquainted with these fact, was the competent authority, had not been asked for approval for the above NOC."
16. We may incidentally notice that the U.P. Land Revenue Act, 1901 provides for Collector in the district as also Additional Collector. Section 14 of the said act provides that the State Government shall appoint a Collector for every district and who shall exercise the powers of Collector under this Act or any other 14 law for the time being in force. Thereafter Section 14-A provides appointment powers and duties of Additional Collectors. Sub- section (3) of Section 14-A of the said Act provides that an Additional Collector shall exercise such powers and discharge such duties of a Collector in such cases or classes of cases as the Collector concerned may direct. Sub-section (4) of Section 14-A of the U.P. Land Revenue Act, 1901 also reads as follows :-
"(4) This Act and every other law for the time being applicable to a Collector shall apply to every Additional Collector, when exercising any powers or discharging any duties under sub-section (3), as if he were the Collector of the district."
17. We wish to say nothing more on this aspect, in view of the course which we intend to adopt in this case. We also notice that another ground is taken that the inquiry is in progress in respect of some Khasra numbers. We would think that this is a communication, which has very serious repercussions for the writ petitioner and, as found by the learned Single Judge, 'no objection' could not have been withdrawn without affording an opportunity to the writ petitioner. Therefore, we sustain the finding of the learned Single Judge to the extent that the order dated 07.03.2015 cannot be sustained. We are of the clear view that the communication dated 07.03.2015 occasions the breach of the elementary principles of natural justice of taking away very precious right to the writ petitioner behind his back.
18. Having said so, the further question arises as to the correctness of the reasoning adopted by the learned Single Judge in regard to Section 15 (9) of the Act. The learned Single Judge has apparently read the word 'suspension' in place of 'cancellation' in Section 15(9) of the Act. Section 15(9) of the Act, as we have already noticed, provides for power with the Vice Chairman if he is satisfied that the permission was granted in consequence of any 15 material misrepresentation or any fraudulent statement or information furnished, then he may cancel the permission and any work done thereunder will be deemed to have been done without any such permission. It also provides for the principle of natural justice being followed.
19. We would think that a causus omission is ordinarily never supplied by a Court. The legislature has not expressly provided for suspension of permission in this Section. The consequences of suspension and cancellation are different. As far as cancellation is concerned, it is a permanent in nature and unless and until it is set aside by a competent forum, it will continue in perpetuity. As far as the suspension is concerned, it has effect only for a particular period and that is usually a power which is exercised, so that matters are kept in a particular state of affairs or status quo is maintained till final decision is taken in the matter. Even though it may be true that during the time of suspension, it may visit the person concerned with serious consequences as in this case they could deprive the writ petitioner of the right to carry out the work under the permission, it does not have the effect of cancellation. We can liken the position in this regard the distinction between a case of dismissal of an employee and suspension of an employee. When a dismissal or removal in disciplinary proceeding is done it can be done only after affording an opportunity of hearing, whereas when suspension of an employee is done, unless the law specifically provides for notice, it is elementary that no notice is required to be given to the employee. Therefore, if the analogous principle is accepted, then in the matter of suspending the permission is concerned, it may stand on a completly different footing from cancellation. We would think if the power of suspension is there then it can be exercised without giving notice to the affected party. We are reinforced in this view of ours by bearing in mind of consequence of giving notice and affording an opportunity of 16 hearing before the power of suspension is resorted to. It would necessarily entail time being spent on the proceedings concerned. By the time the mischief, which is sought to be suppressed would have over taken the authority and the public. Therefore, we would think that if the power of suspension is there, as for instance, right to stop the work, the power need not be preceded by compliance with principles of natural justice. We are further reinforced in this view which we take by a reference to Section 28 of the Act. A perusal of Section 28, which we have already extracted, would show that when the authority exercises the power under Section 28 of the Act to stop the work for various reasons which are mentioned therein; it does not require the giving of any opportunity to the concerned person and, therefore, the power would, undoubtedly, enure to the authority to cause a suspension without complying with the principles of natural justice. In such circumstances, we may not be inclined to subscribe to the view taken by the learned Single Judge in paragraphs 18 & 19 and hence we would vacate that portion of the judgment.
20. Now we have to deal with a question, whether the power is actually there. It is true that reliance is sought to be made by the appellants to Section 28 of the Act. We notice that the ground taken is that the power does not flow from Section 15 (9) of the Act. In this case, there is nothing to show that power is being exercised under Section 15(9) of the Act. In this regard, however, we are proceeding to dispose of the matter in view of the fact that the parties are agreed to the course to be undertaken. We have already noticed that the order dated 07.03.2015 cannot stand scrutiny of law. The resultant position would be that 'no objection' given by the ADM would revive, but it is agreed that in the circumstances of this case and admittedly as the inquiry is on in regard at least to certain Khasra numbers and to give a quietus to the entire matter that the notice should be given to the petitioner regarding the 17 recalling of the 'NOC' and thereafter appropriate action can be taken on the basis of conclusion of the inquiry. Therefore, we do not wish to dwell more upon the question relating to the power as such under Section 15(9) or under Section 28 of the Act. We direct in modification of the judgment of the learned Single Judge as follows:
The District Magistrate/appellant No.3 will issue notice by 07.10.2015, it is submitted by the learned Advocate General, to the writ petitioner setting out the reasons for canceling/withdrawing the 'NOC' granted by the ADM, so that the writ petitioner will know what it has to answer by way of response. The learned Senior Counsel for the writ petitioner undertakes that the writ petitioner will file its objections by 12.10.2015. Thereafter, the District Magistrate will afford an opportunity of hearing to the writ petitioner and finalize the matter as early as possible, at any rate, before 28.10.2015. We record the submission of Shri Arvind Vashisth, learned Sr. counsel on behalf of the writ petitioner, on the basis of instructions given by the assisting counsel that the writ petitioner will not carry out any construction or any other work in pursuance of the permission granted by the MDDA till 28.10.2015. The District Magistrate on taking the decision on or before 28.10.2015 within 24 hours, will communicate the same to the MDDA. Thereafter, it is for the MDDA to take a decision in the matter and communicate the same to the writ petitioner if, on the basis of the report of the District Magistrate, it is found that the permission is liable to be cancelled in part or in whole. MDDA will be free to take action in accordance with law. MDDA will take a decision on the report of the District Magistrate within a period of three days and communicate it to the writ petitioner. Till such time as the decision is communicated by the MDDA, the writ petitioner will not carry out any construction. We make it clear that we have 18 not pronounced on whether any power of suspension is available in a case covered by Section 15(9) of the Act.
21. The appeal is allowed as above.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
01.10.2015 01.10.2015
P. Singh