Smt. Swarn Goyal And Others ... vs State Of Uttarakhand And Others on 5 September, 2018

[Cites 13, Cited by 1]

Uttarakhand High Court

Smt. Swarn Goyal And Others ... vs State Of Uttarakhand And Others on 5 September, 2018

The cause agitated in this writ petition happens to be one of those rare cases of anarchisiam which reflects the barbaric act and manner in which, the State Government and its Authorities created under a Statutue deal with their subject dehors to the established procedure under the law, it cannot be ruled out that the haste with which respondent has proceeded, it was for external and extraneous reasons.

Before assigning any reason for passing this order, certain factual backdrops which have been argued and as emerged from record brought by the petitioner, is necessarily required to be considered.

It is a specific case pleaded by the petitioners that the property, in question, which bears Municipal Number 160/6, having a total area of 1504.93 sq. mtr. is situated on Khasra Nos. 23, 24, 25, 47, 32/1 and 32/2, situated at Mauza 2 Jakhan, Pargana Kendriyadoon, District Dehradun (hereinafter to be called as the property in dispute) (It has been described in same fashion in the plaint too).

In the plaint, the case of the petitioners is that the part of the property, in question, was purchased by the late husband of the plaintiff No. 2 and father of defendant Nos. 3 and 4 by virtue of the registered sale deed dated 4th December, 2000, from its predecessor recorded owner. The said sale deed was registered before the Sub Registrar on 4th December, 2000 itself. Other part of the property was also purchased by plaintiff No. 2 from Shri Kovind Ahuja by sale deed dated 6th December, 2000, which too, was registered with the Sub Registrar. Certain part of the property, was purchased by plaintiff No. 3 along with his late father of defendant Nos. 5 and 6, i.e. late Mr. Ram Kumar Goel by sale deed dated 4th December, 2000 from its seller Shri Kovid Ahuja. Plaintiff No. 1 purchased part of the property by sale deed dated 5th December, 2000 from Kovind Ahuja. This is how plaintiff have pleaded their rights, title and possession based on registered unassailed sale deeds by which right and title flowed to them.

In the plaint, it has also come on record that the predecessor owner of the property Mr. Kovind Ahuja S/O R.K. Ahuja, seller of the plaintiffs, was the purchaser of the property by the separate sale deeds dated 05.05.1999 sold to him by one Madan Lal Malik, which was registered before the Sub Registrar on the same day. Similarly, other part of the property was purchased by the predecessor owner, i.e. Kovind Ahuja by sale deed dated 5th May, 1999 from its predecessor owner Madan Lal Malik. Further to show the 3 flow of title, the plaintiff in the suit has submitted that, initially, the property belongs to Swadesh Kant Malik w/o Madan Lal Malik who is said to have purchased the property by sale deed on 31st August, 1971 from Smt. Krishna Kochar.

The contention of the learned counsel for the petitioners is that after the purchase of the property, they are recorded in the municipal record. Their predecessors also stood recorded in the municipal record. Apart from that, all these sale deeds since 1971 till the purchase by plaintiffs are intact and unchallenged.

The principal owner who was the purchaser of the property by the sale deed dated 31st August, 1971, i.e. Smt. Swadesh Kant Malik for the purposes of getting the construction sanctioned moved an application 14 of the Urban Planning and Development Act before the Mussoorie Dehradun Authority, who after considering the application on the basis of the procedure contemplated under the bye- laws framed under the Act, the map was sanctioned, which was numbered as Map No. 669 /87 dated 6th April, 1986.

At this stage, it is necessary to point out that none of the sale deeds ever since 1971 till the time the petitioners purchased or even the map sanctioned on 6th April, 1987, was ever challenged/quashed or set aside on a challenge being given either by the authorities of the MDDA itself or by any private individual. No proceedings as againt the map was taken under the U.P. Urban Planning and Development Act.

The case of the petitioner is that without any prior action or notice being issued by the respondent, the respondent on 6th July, 2018 along with the Lekhpal and one of the representatives of defendant No. 2, i.e. of MDDA in the absence of the plaintiffs visited the property in dispute and stopped the repair work which was being carried. It was on 6th July, 2018, itself, that some police officials too accompanied with some constables from Jakhan Chowki were called upon by respondent No. 2, who had without there being any complaint lodged againt the workers taken the workers from the spot to the police station, held them there in his custody.

The case of the petitioner is that when the contractor informed about the incident of 6th July, 2018, itself on telephone the plaintiff No. 3 visited the MDDA but no response was given to him. It was then the plaintiff had to institute the suit on 10.07.2018, being Suit No. 337 of 2018, impleading State and MDDA as defendant Nos. 1 and 2, praying for the following reliefs :-

"d& oknhx.k ds i{k esa o izfroknhx.k la[;k 1 o 2 ds fo:} LFkk;h fu'ks?kkKk dh vKfIr ikfjr dj izfroknh la[;k 1 o 2] mld vfHkdrkZvksa ,o deZpkfj;ksa] izfrfuf/k;ksa ,oa leuqnsf'krkvksa dks LFkk;h fu'ks?kkKk dh vKfIr }kjk oknhx.k dh okni= dh lwph esa of.kZr oknxzLr lEifRr esa fdlh izdkj dk vfrdze.k djus] rFkk oknh ds "kkfUriw.kZ v?;klu esa [kyy mRiUu djus o mldk dkj.k cuus ls fu'ksf}r fd;k tk;sA [k& ;g fd vU; dksbZ vuqrks'k tks fd ekuuh; U;k;ky; mfpr le>s oknh ds i{k esa rFkk izfroknhx.k ds fo:} ikfjr djus dh d`ik dh tk;sA 5 x& ;g fd oknh dks leLr okn O;; fnyk;k tk;sA"

For the purposes to avoid future dispute of getting the property identified and demarcated and in order to avoid any future complication, the petitioners have filed an application under Order 39 Rule 7 of the C.P.C. on 13.07.2018. Order 39 Rule 7 of the CPC reads as under :-

"7. Detention preservation, inspection, etc., of subject-matter of suit. - (1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,-

(a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein;

(b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of' any other party to such suit; and

(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis , to persons authorized to enter under this: rule."

On the said application of petitioner under Order 39 Rule 7, the Court passed an order on 13.07.2018 and had allowed the same and directed Amin to hold inspection and submit his report. An Amin report was called by the Court, the Amin, after holding spot inspection after prior notice, submitted his report dated 16.07.2018 which provides as under :-

"egksn;] 6 mijksDr okn esa oknh vf/koDrk dks iwoZ esa lwfpr djus ds mijkUr fnukad 16-07-2018 dks gejkg dk;kZy; pijklh ijokus ds lkFk layXu okn i= dh lwph o ekufp= esa n"kkZ;h x;h fookfnr lEifŸk dk LFk fujh{k.k djus ekSds ij x;kA oknh la[;k 03 Jh avadqj xks;y ekSd Ikj mifLFkr feysA muds }kjk okn okn xzLr lEifŸk fpfUgr dh xbZ okn xzLr lEifŸk dh iSekbZ"k o pkSgn~nh okn i= ds lkFk layXu ekufp+= esa n"kkZ;s vuqlkj gksuh ik;h x;hA okn xzLr lEifŸk esa iwjc esa jktiqj jksM+ rFkk if"pe esa jkLrk gksuk ik;k x;k if"pe dh vksj mDr lEifŸk ij iqjkuh ckmUMªh oky cuh ik;h xbZ rfkk mDr ckmUMªh esa yxs eq[; xsV ij vUnj dh vksj rkyk yxk ik;k x;k ftls ekSds ij mifLFkr oknh la[;k 03 Jh vadqj xks;y }kjk [kksyk x;k eq[;k }kj ij ,d cksMZ ^bl lEifŸk dk LokfeRo bu pkj yksxksa ds ikl gS 160@6 jktiqj jksM+] tk[ku nsgjknwu jkedqekj xks;y] gfj"k xks;y] Lo.kZ xks;y] vfurk xks;y lEidZ ua0& 7895499841^ fy[kk gS yxk ik;k x;kA okn xzLr lEifŸk ds e/; esa 30x50 {ks=Qy esa ,d iqjkuk fuekZ.k ftlesa ,d gkWy] nks dejs] rhu VkW;ysV] o ,d fdpu dk fjU;wos"ku dk;Z pyrs gksuk ik;k x;kA mDr fuekZ.k ds izFke ry ij ,d LVªksj :e o eeVh Hkh cuh ik;h x;hA Hkwry ij cus dejksa esa pyrs gq, ia[ks yxs ik;s x;s rFkk QksfYMax iyax] fcLRkj vkfn j[ks ik;s x;sA ekSds ij ,d O;fDr ftlus iqNus ij viuk uke jktsUnz crk;k Hkh feyk mlus crk;k fd mls oknhx.k }kjk ds;j Vsdj ds :Ik esa fu;qDr dj j[kk gS oknhx.k okn xzLr lEifŸk ij v/;kflr ik;s x;sA okn xzLr Hkwfe Ikj cus iqjkus fuekZ.k ds vfrfjDr "ks'k [kkyh Hkwfe ij fofHkUu iztkrh ds dkQh cMs&cMS N% isM+ [kM+s gksus ik;s x;sA ekSds ij mifLFkr oknh la[;k 03 Jh vadqj xks;y ds gLrk{kj ijokus ij djok;s x;sA vk[;k lsok esa lknj lefiZr gS"

It would not be out of context to mention here that on institution of the Suit on 10th July, 2018, the Court of Civil Judge (Senior Division), Dehradun issued notices to the defendants for filing of the written statements and for framing of the issues, date fixed was 30th August, 2018. In compliance of the order 13.07.2018, passed under Order 39 Rule 7 of the CPC, Amin is said to have visited the spot and submitted his report on 16.07.2018, which was placed on record of Trial Court. It is the case of the petitioners that even according to Amin's report dated dated 16.07.2017, submitted before the Court on 26th July, 2018, fortifies the 7 fact that the petitioners are in possession of the property and it described the property and its whereabouts and locations.

The admitted case of respondent Nos. 1 and 2 before this Court, on their appearance in person and as per their counsel too, notices as sent by the learned Trial Court was received by them on 16th July, 2018. Despite of it having been served with the notices of the Court on 16th July, 2018, the respondents are shown to have activated their action, they got an inspection conducted on 26th July, 2018, rather than ensuring their presence before the Trial Court before whom proceedings were pending, i.e. after the receipt of notice of the Civil Suit on 16.07.2018 and that inspection held on 26.07.2018 has been taken as to be the basis for sealing the premises on the same day.

This Court passed an order on 10th August, 2018, calling upon the Secretary MDDA and the SHO, Rajpur to appear in person on the date fixed, i.e. 13th August, 2018. The Secretaries MDDA has put in appearance through engagement of a Special Counsel, Mr. Aditya Singh along with the panel advocate Mr. Rahul Consul, who appeared earlier and filed his short counter affidavit without the vakalatnama annexed thereto being signed by Mr. Rahul Consul.

A very peculiar case has been raised by the respondent No. 2 to justify his action of sealing and the case as projected in the short counter affidavit, as a matter of fact, is that the property in question, the title of which has flown to the petitioner since 1971 and the map of which stood sanctioned in 1987, which was later on certain part of 8 which stood compounded in 1992 by MDDA iself is claimed to be a State land. Though, the only ground which was argued is that since the land falls under category 5 (3) (e) i.e. Banjar, hence, as per the khatoni pertaining to 1389 fasli, i.e. pertaining to the year 1982-83, it would be a state land allegedly having being recorded in pursuance to order dated 02.03.1982 passed in Case No. 11282 of 1982. It was further contended that after about 10 years of said entry made in 1983 claimed to be w.e.f. 1982-83, the District Magistrate on 7th December, 1991 is shown to have handed over possession to the MDDA and possession certificate was issued on 28th December, 1991. The MDDA, claimed that they are in possession of the property since 1991, when it was handed over by the District Magistrate and the State continued to be mutated in the record. This Court cannot be oblivious of the fact that the MDDA itself after the alleged handing over of possession on 28.12.1991, had passed order in 1992 in Case No. 39 of 1992 exercising powers under Section 32 of Act of 1973 for compounding of construction, said to have made by the petitioners that too on the notice of compounding issued by MDDA. The MDDA contends that on the instruction of the Joint Secretary, the Junior Engineer of the MDDA visited the spot on 22nd June, 2018. We have to bear in mind, it was after 07.12.1991, the alleged story of handing over of possession and had seen that the new construction was being carried for. Admittedly, since 1982 till 22nd June, 2018 i.e. for almost 36 yers, there is nothing on record to show that the State Government had ever taken any action under the purported claim of the land belonging to the State Government. Even in the endorsement made in CA-5, the respondents 9 themselves were not clear as to whether the land belongs to the State Government or not. Relevant portion of short counter affidavit is quoted hereinbelow:

"vr% iz"uxr LFky o Hkou ds LokfeRo izkf/kdj.k dk gh gS dh iqf'V izkf/kdj.k ys[kiky ls fd;k tkuk furkar vko";d gSA"

Hence, the report from Lekhpal was called for. The report dated 22.06.2018 shows that repair work was being done, the pleading raised in the short counter affidavit runs contrary as pleaded in paragraph 13 of short counter affidavit where it pleads as "fresh construction started" and "raising construction" Annexure No. 7 to the counter affidavit is the report dated 26.07.2018 which has been jointly submitted by the Lekhpal surprisingly on the direction of SDM issued on the same date, the promptness and efficiency of respondent after service of notice by Court is unlike the procedure normally MDDA is used to follow in other cases what was so peculiar and particular about this case is to be ventured by the Trial Court that too also after issuance of the notice by the Civil Court and its receipt by the MDDA on 16th July, 2018. On 26th July, 2018, itself, the respondents contends that a show cause notice was issued to the petitioners. Looking to the chain of events and a haste in which the action has been proceeded creates a doubt. SDM passes an order on 26th July, 2018, to conduct an inspection, Lekhpal holds an inspection on 26th July, 2018 itself and the Junior Engineer issued a show cause notice on 26th July, 2018 itself at 3:00 P.M ad notice under Section 27(1) issued on 26.07.2018 every act has been done on same day.

Apparently, the notices are shown to have been issued under Section 27 (1) of the Act on 26th July, 2018, i.e. after 10 the services of notice of the suit on 16.07.2010. What is relevant to be seen is also that the notice of 26th July, 2018, though being in haste is issued under Section 27 (1) read with Section 14 of the Act, which means that Section 27 has been invoked due to the construction being raised without a sanction. Admittedly, the sanction in the present case happens to be of 1987. It is also admitted case and also borne out from record that the deviated construction stood compounded as back as in 1992 and, thereafter, no action has been taken and, thereafter, it is a specific case of the petitioner that no new construction has been raised even the Annexure 5 to the short counter affidavit shows it was repair and not construction. The reasons for the notice under Section 27 dated 26th July, 2018 is the encroachment on a Government land. The said theory is not acceptable, apparently for the reasons:

1. The title ever since 1971 till it vested with the petitioner in 2000 has been proved on record.

2. The construction stood sanctioned in 1987 and later on compounded in 1992.

3. The theory of the property being a State land is claimed to be by the entry of 1982, there is no reason as to why the respondents sat in slumber since 1982 till 26th July, 2018 for 36 years by taking action.

4. Why the entire action has proceeded on the so called issuance of the notice on 26th July, 2018, only after the receipt of notice of the suit on 16th July, 2018. The notice under Section 27 alleges encroachment to be basis of action. Whereas, Section 27 which contemplates a demolition of 11 construction which has been 'carried' or 'completed' in contravention of the master plan or zone plan without 'permission', 'approval' or 'sanction'. The reason for section 27 which is the foundation of the notice would not fall within the parameters of Section 27.

5. The theory of issuance of notice under Section 27 is still a dubious act for the reason there are two notices on record of the like date under Section 27, both on the basis of there have been an encroachment on the public land. Both the notices are of the same case number which is practically inconceivable and it could be said that these notices were issued when the respondents, know about the order passed by this Court on 10th August, 2018 by antedating.

6. Looking to the chain of events and a haste in which the action has been proceeded creates a doubt.

SDM passes an order on 26th July, 2018, to conduct an inspection, Lekhpal holds an inspection on 26th July, 2018 itself and the Junior Engineer issued a show cause notice on 26th July, 2018 itself at 3:00 P.M ad notice under Section 27(1) issued on 26.07.2018 every act has been done on same day.

Sealing is an action contemplated under Section 28A of the Act, which could be resorted to before or after the action being taken under Sections 27 or 28 of the Act. Section 27 with which, we are concerned at this stage is related to order of demolition or construction carried in contravention of the provisions of the Act. Whereas Section 28 provides for stopping of construction being carried or 12 completed in contravention to the conditions included under Section 28, which is not the case here. On the contrary, Section 27, nowhere contemplates to deal with the action of encroachment over a public land, which has been taken the basis of notice under Section 27 (1) dated 26.07.2018, which is beyond the scope of the Act and a power which is not vested with respondent No. 2. Then even, it is presumed that action was called for under Section 27, it could not be without complying with the proviso to Section 27 (1) of the Act.

Even otherwise, the respondent No. 2 would not have any power to take an actioin under the so called pretext of encroachment on public land, as the legislature has framed a special Act for the said purpose being U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, where the power for action is given to the Prescribed Authority constituted under Section 3 of the Act for action under Section 4 of issuance of notice.

Be that as it may. We are living in a country having a civilized democrate society. Each action by authority and, more particularly, public authority created under a statute has to be strictly as per procedure and mandate in a manner to repose confidence in the people about the fairness in their action and there must be transparency attached to it. They should not be instrumental in acting on directive of hidden factors.

This Court does not at all propagate or support an action of encroachment, but, then this Court cannot shut its eyes, if an action is taken by the authority created under law contrary to the procedure under the Act. Sealing a premise 13 is still not a concept which falls within the ambit of Section 27 of the Act as it is an action contemplated under Section 28-A because Section 28-A which deals with the sealing could be before or after an action under Section 27. In the instant case, the sealing has been done in contravention of Section 27-A of the Act. Hence, prima facie the action taken by respondent No. 2 seems to be arbitrary and violative of Articles 14 and 300-A of the Constitution of India.

Hence, this Court before taking a concrete and strigent action, issues a show cause notice to respondent No. 2 to explain his conduct before the matter is referred to State for appropriate action against authorities instrumental in it and further to explain as to why being an authority under the Act has proceeded contrary to the procedure provided under the Act of 1973. The reply is to be submitted within a period of two weeks from the date of receipt of the certified copy of the order, as to why the reference may not be made to the State Government for taking an action against respondent No. 2. If the reply is not submitted within a period of two weeks from the date of receipt of the certified copy of the order, a suitable order would be passed by this Court.

Put as part heard on 14.09.2018. Registry is directed to send the copy of this order to respondent no. 2 and Secretary, Urban Development for further follow up action and short compliance.

(Sharad Kumar Sharma, J.) 05.09.2018 Shiv

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Uttarakhand High Court