WPMS/1990/2008 of MUSSOORIE DEHRADUN DEVELOPMENT AUTHORTY Vs SH. ANIL KUMAR SHARMA on 29 December 2011

1. Heard Mr. Shobhit Saharia, Advocate for the petitioner and Mr. B.P. Nautiyal, Senior Advocate assisted by Mr. Jayvardhan Kandpal, Advocate for the respondent.

2. This writ petition has been filed by the Mussoorie Dehradun Development Authority (from hereinafter referred to as Development Authority) against the order dated 7.8.2008 passed by the Additional Secretary (Housing) State of Uttarakhand, Dehradun which has been done exercising its power under Section 41 of the U.P. Urban Planning and Development Act, 1973. Interestingly, the Development Authority has not impleaded Additional Secretary (Housing), State of Uttarakhand, Dehradun as necessary party in the array of parties but only the private respondent! Section 41 reads as under:- “41. Control by State Government.-(1) The [65][Authority, the Chairman or the Vice-Chairman] shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the [66][Authority, the Chairman or the Vice Chairman] under this Act any dispute arises between the [67][Authority, the Chairman or the Vice-Chairman] and the State Government the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any disposed of or order passed by the [68][Authority or the Chairman] for the purpose of satisfying itself as to the legality or property of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.

69[(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court.]”

3. Brief facts of the case are that in Dehradun there a Development Authority constituted under the U.P. Urban Planning and Development Act, 1973 (from hereinafter referred to as the Act). The major area of District Dehradun is a developed area under the said Act. Consequently, a Development Authority was also created under the said Act. Consequently, any construction to be made within the said developed area has to be made after the sanction of the map by the Development Authority. Such maps are sanctioned under Section 15 of the said Act.

4. Since the respondent wanted to make construction in the developed area he moved an application for sanctioning of map under Section 15 of the said Act. The map was sanctioned by order dated 16.6.2008 by the Development Authority with certain conditions such as imposition of “development charges”, etc. Since the

respondent disputed this development charges, he moved a statutory appeal under Section 15 (5) of the said Act before the Chairman of the Development Authority. The Divisional Commission, Garhwal Division, who is an ex-officio Chairman of the Development Authority, in the present case, allowed the appeal and directed the Development Authority not to charge the development charges at the rate it was being charged. The document and the files to this effect were remanded back to the Development Authority for its implementation. The Development Authority though slept over the matter and thereafter respondent was constrained to move to the State Government for redressal of his grievances. Under the Act, the State Government exercises its power under Section 41.

5. Sub-section 1 of Section 41 of the Act clearly stipulates that the authority (i.e., the Development Authority), the Chairman or the Vice-Chairman (of the Development Authority) shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. Moreover, sub-Section 2 of Section 41 of the Act states that in case of any dispute between the Development Authority (or the Chairman or the Vice Chairman) and the State Government the decision of the State Government on such dispute shall be final! When the matter went before the State Government in the revision filed by the respondent, the State Government upheld the decision of the Divisional Commissioner, Garhwal Mandal and remanded the matter back to the Development Authority for the effective implementation of the order of the Divisional Commissioner, i.e. the Chairman of the Development Authority.

6. From a bare perusal of sub-Section (1) and sub-Section (2) of Section 41 of the Act as already referred above, once the matter was decided by the State Government on a particular issue, the Development Authority had no option but to abide by the said order under clear provision of sub-Section (1) and sub Section (2) of Section 41 of the Act. If there is any other person who is aggrieved, it will be open for him to challenge the said order before the appropriate forum. But the Development Authority cannot challenge the order in view of clear provision of Section 41 of the Act.

7. It is clearly not permissible under the scheme of the said Act, that the development Authority who is a creature of the statute and is under total administrative as well as financial control of the State Government to challenge the order of the government. Moreover, under Section 41 of the Act, the decision of the State Government has to be final. The State Government has taken a decision, which has to be complied with by the Development Authority.

8. Under the peculiar facts and circumstance of the case, this writ petition in fact is not maintainable and interestingly, in this case State Government has also not been made a party. In view of this Court this appears to have been done deliberately. The writ petition in view of what has been stated above is liable to be dismissed and is hereby dismissed.

9. Learned counsel for the respondent states that due to pendency of this writ petition, an irreparable damage and financial loss has been caused to the private respondent.

10. Be that as it may, no such relief has been claimed by the respondent before this Court, as such, no relief can be given to the respondent. Though the respondent is hereby directed to deposit the development charges as per direction of the Chairman dated 31.5.2007 and the petitioner shall release the sanction map within a period of fifteen days thereafter.

11. No order as to costs.

(Sudhanshu Dhulia, J.) Dated: 29.12.2011 Virendra