Uttarakhand High Court
M/S Abl Projects vs State Of Uttarakhand & Others on 3 July, 2015
Author: U. C. Dhyani
Bench: U. C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Writ Petition no.664 of 2015 (M/S)
M/s ABL Projects ... Petitioner
vs.
State of Uttarakhand & others ... Respondents
Mr. Vivek Chaudhary, Advocate with Mr. Vivek Pathak, Mr. Gaurav Singh, Mr. Vikrant
Gambhir & Ashish Gupta, Advocates present for the petitioner.
Mr. Avtar Singh Rawat, Additional Advocate General assisted by Mr. Dinesh Bisht and Mr.
I. P. Kohli, Brief Holders present for the State of Uttarakhand.
Mr. Rahul Consul, Advocate with Mr. Lalit Samant, Advocate present for the respondents
no.4 & 5 - MDDA.
U. C. Dhyani, J. (Oral)
1. By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.03.2015 passed by the Vice Chairman, Mussoorie Dehradun Development Authority/respondent no.4 (as contained in Annexure-1 to the writ petition), order dated 07.03.2015 passed by the District Magistrate, Dehradun / respondent no.3 (as contained in Annexure-2 to the writ petition) and order dated 03.03.2015 passed by the District Magistrate, Dehradun (as contained in Annexure-3 to the petition).
2. The petitioner is a partnership firm and the present petition is being filed by one of the partners of the firm, who is authorized to file this petition on behalf of the petitioner as per resolution dated 17.03.2015. The petitioner is the bhumidhar/owner of the land having total area 4.223 hectares, a detailed description of which has been given in para 3 of the writ petition. Initially, the land (details of which are mentioned in para 3 of the petition) was purchased by a firm, namely, B. D. -2- Agarwal Project, with which there were co-applicants, namely, Aadesh Gupta, M/s Dehra Colds Reiterates Pvt. Ltd., Amrit Pal Singh, Mohit Yuvraj, Ranveer Singh Rawat, Rajendra Singh Rawat, Kaushalya Devi and others (hereinafter referred to as promoters of Panache Valley), who were also bhumidhars of other pieces of land, together planned to develop a habitat neighbours duly recognized under building byelaws (hereinafter referred to as Panache Valley), and got a plan layout sanctioned from the Mussoorie Dehradun Development Authority (hereinafter referred to as MDDA). Subsequently, the petitioner got the name of the firm changed from B.D. Agarwal Project to ABL Projects.
3. The petitioner and other co-applicants in title, collectively, after complying with the conditions of prevalent byelaws of the MDDA, got a layout plan sanctioned in the name of 'Panache Valley' from the MDDA, vide sanctioned plan no.L-003/11-12 dated 22.09.2012. The petitioner and its co-applicants had these lands in village Chalang and Sadhowali Dhoran, Dehradun. These do not include government land or Gaon Sabha land. It is stated that none of such land has been included in layout plan and, as per prevailing law, no attempt has been made by the promoters of Panache Valley Projects to encroach upon the government land.
4. Subsequent to the Layout Plan having been sanctioned as mentioned above, the petitioner and other co-applicants developed their lands as per sanctioned Layout Plan and made huge investments. In order to get the Layout Plan sanctioned, the petitioner had already mortgaged some of the plots of the Project with the concerned respondent, as per the requirement of the building byelaws.
-3-5. In the month of February, 2015, the Secretary, Revenue, Govt. of Uttarakhand, alongwith a team of 15 persons, made an inspection at the aforementioned site without any prior notice to the promoters and asked the promoters that they had encroached the government land and have included the same in Panache Valley Project, whereupon the petitioner had shown all the relevant documents pertaining to land, including NOC issued by the Additional District Magistrate to the Secretary, Revenue, Govt. of Uttarakhand, but in vain and they again measured the land. An extensive survey was done, but no irregularity was found.
6. Subsequently, the measurement of the land of the petitioner was done by two different teams of revenue department on two different dates. In both exercises of measurement of land, it has come out that no government land has been encroached by the petitioner. The petitioner sought for the survey reports under the Right to Information Act, but the concerned authorities have kept the report confidential and did not supply the same to the petitioner. The Vice Chairman, MDDA, vide order dated 16.03.2015, suspended the sanctioned Layout Plan and directed the petitioner to stop the construction/development activities. The said order dated 16.03.2015 was passed by the Vice Chairman, MDDA / respondent no.4 on the basis of impugned order dated 07.03.2015 of the District Magistrate / respondent no.3, which has been issued on the oral direction of the Chairman, Board of Revenue/respondent no.2.
7. Learned counsel for the petitioner submitted that the impugned order dated 16.03.2015 was passed by the MDDA without affording an opportunity of being heard to the petitioner. The valuable interest of the petitioner was involved in the -4- impugned orders, yet the principles of natural justice were not followed. Hence, the impugned orders are not sustainable in the eye of law and are liable to be set aside, in as much as, no notice was issued to the petitioner before passing the impugned orders.
8. The core submission of learned counsel for the petitioner is that a bare perusal of all impugned orders demonstrates that the same have been passed without issuing any notice or giving any opportunity of hearing to the petitioner. Thus, the impugned orders have been passed in violation of the principle of natural justice, i.e., without giving any notice or opportunity of hearing to the petitioner.
9. Another important submission of learned counsel for the petitioner is that the State attempted to raise fresh grounds to justify the impugned orders, which were not mentioned in the said orders. Learned counsel for the petitioner placed reliance upon the judgment of Hon'ble Supreme Court in State of U.P. & others vs. Maharaja Dharmander Prasad Singh, (1989) 2 SCC 505, wherein it was observed that :
"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 -5- 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."
10. Learned counsel for the petitioner also placed reliance upon a decision of Hon'ble Supreme Court in Mohinder Singh Gill & another vs. The Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405, wherein it was held that :
"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 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 -6- objectively with reference to the language used in the order itself."
11. It was also observed by Hon'ble Supreme Court in Maharaja Dharmander Prasad Singh's case (supra) that:
"32. The result, the appeals of the State of Utter Pradesh ........................................... are allowed and the said two writ petitions are dismissed, leaving the question of the legality and validity of the purported cancellation of the lease and the defence of the lessees open to be urged in appropriate legal proceedings, whenever and wherever Government proceeds to initiate action in accordance with law for resumption of possession on the basis of the alleged cancellation or forfeiture of the lease. Any developmental work that may be made by the lessees or at their instance would, of course, be at their own risk and shall be subject to the result of such proceedings.
[Emphasis supplied]
55. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the Authority's discretion that is exercised, but someone else's. If an authority "hands over its discretion to another body it acts ultra vires". Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority.
De Smith sums up the position thus:-7-
"The relevant principles formulated by the courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive."
12. Learned Additional Advocate General drew attention of this Court towards paras 4.1 & 8 of the counter affidavit filed by the respondent no.3/District Magistrate, Dehradun. The said paras are extracted hereinunder for convenience:
"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 -8- 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 remanded to the Court of Assistant Collector, 1st Class (Sadar), Dehradun, for using a legal notice to all shareholders/kashtkars, who were related to alleged subject matter in the court of Assistant Collector, 1st 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 notesheet but the Collector, who was not acquainted with these fact, was the competent authority, had not been asked for approval for the above NOC."
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 -9- 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 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'.
14. Assuming for the sake of argument that all the submissions made by learned Additional Advocate General are correct, and, let us also assume for a moment that the District Magistrate, Dehradun, like a conscious revenue officer and custodian of law, acted bona fade and in absolute good faith to protect the land of -10- the State, even then, the fact remains that no notice / opportunity of hearing was given to the petitioner before passing the impugned order dated 07.03.2015. The communication dated 07.03.2015 of the District Magistrate was conveyed to the petitioner by the MDDA, vide its letter dated 16.03.2015. The MDDA has no qualms against the ongoing constructions being carried out by the petitioner, inasmuch as, the MDDA itself permitted the writ petitioner to do so on the strength of the letter dated 30.08.2012 of the Additional District Magistrate. It is, in fact, the District Magistrate who is at loggerheads with the writ petitioner, in as much as, he found that the NOC given at the behest of ADM was wrong.
15. It will be very useful to reproduce hereinbelow some important observations made in 'Administrative Law', by H.W.R. Wade QC LLD FBA published by the English Language Book Society (ELBS)/Oxford University Press , 5th Edition, reprinted in 1986, at page 469:
"Time and time again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood vs. Woad (1874) L.R. 9 Ex.190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case. ... ... ... ... ... ... ... ...... ... ... ...... ... ... ...... ... ... ...... ... ... ...... ... ... ... And Lord Modson held that all authority was to the effect that a decision contrary to natural justice was void, being vitiated by 'a want of jurisdiction', (1964) A.C. at p.136 Decisions to the same effect are very numerous. One example is R. v. North ex p. Oakey (1927) K.B. 491 at 503, 505 (Scrutton and Atkin L.JJ.). ... ... ... ...... ............ ............ ............ ............ ............ ...-11-
... ... ... ... ... The confusions in this case are inextricable; ................................., since both the House of Lords {Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 A.C. 147; Hoffman-La Roche v. Secretary of State of Trade and Industry, (1975) A.C. 295} and the Privy Council {A.G. v. Ryan, (1980) A.C. 143} have since reaffirmed that an order made contrary to natural justice is outside jurisdiction and void, and that any other terminology would be 'inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arms of government'."
16. Since no opportunity of hearing was granted by the District Magistrate/State Government to the writ petitioner before issuing the order dated 07.03.2015, therefore, the same should not survive, in the estimation of this Court. The impugned order dated 07.03.2015 passed by the District Magistrate, therefore, goes for want of giving prior notice to the petitioner.
17. The next question which arises for the consideration of this Court is - What will be the effect on the ongoing constructions being carried out at the behest of the petitioner?
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 -12- 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.
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.
22. The writ petition thus stands disposed of.
(U. C. Dhyani, J.) Dated 03rd July, 2015 Rawat