Uttarakhand High Court
WPMS/1555/2007 on 2 May, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (M/S) NO. 1555 OF 2007
2ND MAY, 2023
Between:
Anand Thapli ...... Petitioner
and
State of U.P. & others ...... Respondents
Counsel for the petitioner : Mr. Siddhartha Sah, learned
counsel
Counsel for the respondents : Mr. I.D. Paliwal, learned Standing
Counsel for the State of U.P. /
respondent No. 1
: Ms. Puja Banga, learned counsel
for respondent Nos. 2 and 3
: Mr. Pradeep Joshi, learned
Additional Chief Standing Counsel
for the State of Uttarakhand /
respondent No. 4
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi) We have heard learned counsels, and proceed to dispose of the writ petition.
2) The petitioner has preferred the present writ petition to seek the following reliefs : 2
"i) Declare the notification 225/XI-5-84-19(1)-DA-84 (Annexure No. 2) as ultra-vires and unconstitutional.
ii) Issue a writ of prohibition and / or a writ in the nature of prohibition or any other appropriate writ / order / direction, quashing and setting aside the notices dated 17th June, 2002 and 26th December, 2002 (Annexure No. 6 and 9) and the composite order dated 20th August, 2004 (Annexure No. 13).
iii) Stay the order and further proceeding pursuant to the order dated 20th August, 2004 (Annexure No.
13) during the pendency and final disposal of this petition."
3) The Notification No. 225/XI-5-84-19(1)-DA- 84, which is challenged by the petitioner as ultra vires and unconstitutional, in so far as it is relevant, reads as follows:
"In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of Notification No. 225/XI-5-84-19(1)-DA- 84, dated October 29, 1984 :
Noti. No. 225/XI-5-84-19(1)-DA-84 Dated Lucknow, October 29, 1984 Whereas in the opinion of the State Government the following Mussoorie-Dehra Dun area of District Dehra Dun required to be developed in a planned manner;3
Now, therefore, in exercise of the powers under Section 3 of the Uttar Pradesh Urban Planning and Development Act, 1973 (President's Act No. 11 of 1973), as re-enacted and amended by the Uttar Pradesh President's Act (Re-enactment with Modifications) Act, 1974 (U.P. Act No. 30 of 1974), the Governor is pleased to declare, with effect from the date of publication of this notification in the Gazette, the following area to be the Mussoorie-Dehra Dun Development Area.
AREA Area falling within the limits of Mussoorie Municipal Board, Dehra Dun regulated area under which the Municipal Board, Dehra Dun and area of the following 185 Revenue villages as per list given below of Mussoorie-Dehra Dun, District Dehra Dun situated around it are included, but excluding, cantonment area and land owned, requisitioned or taken on lease by the Central Government for the purpose of any Naval, Army or Air Force Authority."
4) The area notified includes the village of the petitioner, i.e., Kuarkuli Bhatta, which is found at serial No. 161 of the tabulation containing the names of the towns / villages, which have been notified.
5) It appears that the petitioner sought to carry out development on his land, and for that purpose the petitioner approached the Gram Panchayat, which granted permission to the petitioner to carry out 4 development vide its communication dated 06.06.2004. The permission was granted by the Gram Panchayat on the basis of a communication received from the Assistant Engineer of the Mussoorie Dehradun Development Authority (MDDA) to the effect, that the land in the village fell beyond the jurisdiction of the MDDA. The petitioner claims that he carried out the development in pursuance of the said permission granted to him by the Gram Panchayat. Subsequently, he was issued a show cause notice on 26.12.2002, requiring him to show cause - as to why the development carried out by him in contravention of Section 14 of the U.P. Urban Planning and Development Act, 1973, should not be demolished. The show cause notice resulted in a demolition order being passed against the petitioner dated 20.08.2004.
6) The challenge to the constitutionality of the aforesaid notification is premised on the submission that Chapter IX was introduced in the Constitution on the subject of Panchayats by the Constitution (Seventy-third Amendment) Act, 1992 w.e.f. 24.04.1993. Article 243G states that - "subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority 5 and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to, inter alia, the preparation of plans for economic development and social justice, and implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.
7) Mr. Sah submits that the Eleventh Schedule to the Constitution enlists "rural housing" at serial No. 10. He submits that as a consequence of the introduction of the aforesaid provision in the Constitution, the Uttar Pradesh Panchayat Raj Act, 1947, was amended by U.P. Act No. 9 of 1994, which, inter alia, laid down the function of the Gram Panchayats in Section 15. Section 15 of the Uttar Pradesh Panchayat Raj Act, 1974, as amended, in so far as it is relevant, reads as follows :
"Subject to such conditions as may be specified by the State Government, from time to time, a Gram Panchayat shall perform the following functions, namely, -6
ii) Land development, land reform implementation, land consolidation and soil conservation
(x) Rural housing :
(a) Implementation of rural housing
programmes.
(b) Distributing house-sites and
maintenance of records relating to
them."
8) The submission of Mr. Sah is that, since the
Panchayats have now been endowed by power and authority to enable them to function as institutions of self-government, and have been vested with powers and responsibilities, inter alia, rural housing, it is the Gram Panchayats which alone are empowered to grant sanction or permission for development of rural housing.
Consequently, the power vested in the State by virtue of Section 3 of the U.P. Urban Planning and development Act, 1973, to declare an area as a development area, cannot be read to mean the declaration of a rural area, which falls within the jurisdiction of Gram Panchayats, as a development area.
9) Section 3 of the U.P. Urban Planning and Development Act, 1973, in pursuance of which the impugned notification has been issued, reads as follows :
"3. Declaration of development areas. -If in the opinion of the State Government any area within the 7 State requires to be developed according to plan it may, by notification in the Gazette declare the area to be a development area."
10) We have considered the aforesaid submission of Mr. Sah. The U.P. Urban Planning and Development Act, 1973, is an Act - "to provide for the development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto". The prefatory note, reasons for the enactment of the U.P. Urban Planning and Development Act, 1973, inter alia, reads - "In the developing areas of the State of Uttar Pradesh the problems of town planning and Urban Development need to be tackled resolutely. The existing local bodies and other authorities in spite of their best efforts have not been able to cope with these problems to the desired extent. In order to bring about improvement in this situation, the State Government considered it advisable that in such developing areas, Development Authorities patterned on the Delhi Development Authority be established. As the State Government was of the view that the Urban Development and planning work in the State had already been delayed it was felt necessary to provide for early establishment of such authorities." 8
11) The scheme of the U.P. Urban Planning and Development Act, 1973, is that the State Government may declare an area as a development area; the State Government may constitute an authority, called the Development Authority of any development area; the State Government shall prepare master plan and zonal development plan for a development area (Sections 8 and 9); and, with a view to ensure that haphazard or unplanned development does not take place, Section 14 of the Act prohibits the undertaking of development, in a development area, unless permission for such development has been obtained in writing from the Vice- Chairman of the Development Authority in accordance with the provisions of the Act.
12) In so far as it is relevant, Section 14 reads as follows :
"14. Development of land in the developed area.
-(1) After the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government) unless permission for such development has been obtained in writing from the Vice-Chairman in accordance with the provisions of this Act.
(2) After the coming into operation of any of the plans in any development area no development shall be 9 undertaken or carried out or continued in that area unless such development is also in accordance with such plans."
13) Having examined the submission of Mr. Sah, we are of the view, that there is no merit in the same. The introduction of Chapter IX in the Constitution, and the incorporation of Article 243G read with the Eleventh Schedule, no doubt, authorizes the Gram Panchayats to discharge certain responsibilities and functions, inter alia, in relation to rural housing. The introduction of Section 15 in the U.P. Panchayat Raj Act, 1947, empowers the Gram Panchayat to perform the enlisted functions which include - "land development, land reform implementation, land consolidation and soil conservation", and "rural housing : (a) implementation of rural housing programmes (b) distributing house-sites and maintenance of records relating to them."
14) First and foremost, the aforesaid functions entrusted to the Gram Panchayat do not in turn deal with the aspect of development of the rural housing. They deal with land development which, it appears to us, would be different from development of rural housing. Rural housing has been enlisted as a separate entry in Clause (x). The aspects of rural housing in respect 10 whereof the Gram Panchayat has been vested with authority relates to "implementation of rural housing programmes", and "distributing house-sites and maintenance of records relating to them". Per se, the same does not deal with the function of authorizing development of rural housing. In any event of the matter, even if, the said entries were to be construed broadly to mean, that the Gram Panchayat has been entrusted with the function, and vested with the authority to grant sanction / permission of raising of rural housing, even then, to our mind, the same does not take away the power of the State Government under Section 3 of the U.P. Urban Planning and Development Act, 1973, to declare an area as a development area, which may include rural housing falling within the jurisdiction of Gram Panchayats, which would in turn, lead to application of, inter alia, Section 14 of the U.P. Urban Planning and Development Act, 1973, over each parcel of land falling in the development area. In our view, the two enactments, and the authority vested in the State Government, on the one hand, by virtue of the U.P. Urban Planning and Development Act, 1973, and the Gram Panchayat, on the other hand, by virtue of Section 15 of the U.P. Panchayat Raj Act, 1947, are not 11 at cross-purposes and can be harmonized. Therefore, in respect of an area, which is declared as a development area, the development of such area, even if, it falls within the jurisdiction of a Gram Panchayat, would be governed by the provisions of the U.P. Urban Planning and Development Act, 1973, but in respect of areas which are not declared as development areas, the Gram Panchayat concerned would have the jurisdiction to grant permission / sanction, inter alia, in respect of rural housing.
15) So far as the submissions of Mr. Sah premised on the permission granted to the petitioner by the Gram Panchayat on 06.06.2004 is concerned, in our view, the same is neither here, nor there, for the reason, that there is no estoppel against the statute. If the land in question fell within a development area, by force of the provisions of the U.P. Urban Planning and Development Act, 1973, particularly, Section 14 thereof, it was necessary for the petitioner to obtain prior permission / sanction before raising any development over the land from the Vice-Chairman of the Development Authority.
16) In the light of the aforesaid, we dismiss this petition. However, it shall be open to the petitioner to 12 invoke the appellate remedy available to the petitioner under Section 27 of the U.P. Urban Planning and Development Act, 1973. Since, the present petition has remained pending from the time of its filing in the year 2004, and this Court had passed interim orders in favour of the petitioner, which were operating through out, the period spent in this Court in pursuing the present petition shall not come in way of the petitioner in computing the period of limitation in preferring the appeal.
________________ VIPIN SANGHI, C.J.
________________ RAKESH THAPLIYAL, J.
Dt: 2nd MAY, 2023 Negi