Back
2017 Supreme(UK) 395
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. Joseph, V.K. Bist, JJ.
Ganga Beach Resort, Tapovan - Petitioner
Versus
State of Uttarakhand and others - Respondents
Writ Petition (M/S) No. 740 of 2011
Decided On : 16-11-2017
For the Petitioner: Mr. R. Venkataramani, Ms. V. Vijayalakshmi, Mr. Ramji Srivastava
For the Respondent: Mr. Rajeev Singh Bisht, Ms. Puja Banga
Bye-laws framed under a statute are binding on the authority and cannot be departed from by invoking plenary powers available under a different provision of the same statute.
Headnote:
COMPOUNDING OF OFFENCES - BYE-LAWS - DISCRETION OF AUTHORITY - JUDICIAL REVIEW - SECTION 32 OF THE UTTAR PRADESH URBAN PLANNING AND DEVELOPMENT ACT, 1973 - SECTION 57 OF THE UTTAR PRADESH URBAN PLANNING AND DEVELOPMENT ACT, 1973 - SECTION 27 OF THE UTTAR PRADESH URBAN PLANNING AND DEVELOPMENT ACT, 1973 - SECTION 55 OF THE UTTAR PRADESH URBAN PLANNING AND DEVELOPMENT ACT, 1973 - SECTION 56 OF THE UTTAR PRADESH URBAN PLANNING AND DEVELOPMENT ACT, 1973 - HARIDWAR DEVELOPMENT AUTHORITY COMPOUNDING OF CRIMES, 1996 - UTTARAKHAND BUILDING BYE-LAWS AND REGULATIONS, 2011 - GOVERNMENT ORDER DATED 23/8/98 - PUBLIC INTEREST LITIGATION - WRIT PETITION - ARTICLE 14 OF THE CONSTITUTION OF INDIA - ARTICLE 226 OF THE CONSTITUTION OF INDIA - PRINCIPLES OF NATURAL JUSTICE - DOCTRINE OF LEGITIMATE EXPECTATION - DOCTRINE OF PROMISSORY ESTOPPEL - RULE OF LAW - ADMINISTRATIVE LAW - JUDICIAL REVIEW - ULTRA VIRES - ARBITRARINESS - MALA FIDE - FETTERING OF DISCRETION - GUIDELINE - POLICY - STATUTORY DISCRETION - STATUTORY AUTHORITY - JUDICIAL INTERFERENCE - RETROSPECTIVE EFFECT - REPEAL OF LAW - ACQUIRED RIGHTS - INCURRED LIABILITIES - FAIRNESS - EQUALITY - UNIFORMITY - PROPORTIONALITY - REASONABLENESS.
Fact of the Case:
The petitioner, a subsequent purchaser of a resort from the original owner, sought to quash orders passed by the authorities for unauthorized construction and demolition of a portion of the building. The petitioner contended that the construction was completed prior to the purchase and was in accordance with the sanctioned plan. The authorities, however, found that the construction was in violation of the approved drawing and within 200 meters of the Ganga River bank, and that the petitioner had failed to stop the construction despite notices issued under Section 27/28 of the Uttar Pradesh Urban Planning and Development Act, 1973. The petitioner also challenged the compounding application order, arguing that the authorities had not borne in mind the monolithic nature of the structure and had mechanically applied the provisions of the bye-laws made under Section 57 of the Act. The petitioner further contended that the authorities should have considered the vast powers available under Section 32 of the Act to deal with the case on special terms.
Finding of the Court:
The Court found that the petitioner had failed to establish that the construction was in accordance with the sanctioned plan and that the authorities had acted illegally or arbitrarily in passing the impugned orders. The Court held that the bye-laws framed under Section 57 of the Act were statutory in nature and binding on the authority, and that the petitioner could not seek to depart from them by invoking the plenary powers available under Section 32. The Court also rejected the petitioner's argument that the compounding application order was flawed, finding that the authorities had applied the guidelines fairly and in accordance with the law. The Court further held that the petitioner could not seek the benefit of the liberalized concept of F.A.R. under the law, which came into force in the year 2011, as the earlier law had been repealed and the effect of repeal could not take away the rights and liabilities which had been accrued and incurred under the earlier law.
Issues: 1. Whether the authorities acted illegally or arbitrarily in passing the impugned orders for unauthorized construction and demolition of a portion of the building? 2. Whether the petitioner could seek to depart from the bye-laws framed under Section 57 of the Act by invoking the plenary powers available under Section 32? 3. Whether the compounding application order was flawed? 4. Whether the petitioner could seek the benefit of the liberalized concept of F.A.R. under the law, which came into force in the year 2011?
Ratio Decidendi: 1. The Court held that the authorities had not acted illegally or arbitrarily in passing the impugned orders, as they had found that the construction was in violation of the approved drawing and within 200 meters of the Ganga River bank, and that the petitioner had failed to stop the construction despite notices issued under Section 27/28 of the Uttar Pradesh Urban Planning and Development Act, 1973. 2. The Court held that the petitioner could not seek to depart from the bye-laws framed under Section 57 of the Act by invoking the plenary powers available under Section 32, as the bye-laws were statutory in nature and binding on the authority. 3. The Court held that the compounding application order was not flawed, as the authorities had applied the guidelines fairly and in accordance with the law. 4. The Court held that the petitioner could not seek the benefit of the liberalized concept of F.A.R. under the law, which came into force in the year 2011, as the earlier law had been repealed and the effect of repeal could not take away the rights and liabilities which had been accrued and incurred under the earlier law.
Final Decision: The Court dismissed the writ petition, holding that the authorities had not acted illegally or arbitrarily in passing the impugned orders, that the petitioner could not seek to depart from the bye-laws framed under Section 57 of the Act by invoking the plenary powers available under Section 32, that the compounding application order was not flawed, and that the petitioner could not seek the benefit of the liberalized concept of F.A.R. under the law, which came into force in the year 2011.
K.M. Joseph, J.
Petitioner has approached this Court seeking the following relief’s:
“(a) to issue a Writ, order or direction in the nature of certiorari quashing the order dated 19.04.2011 passed by the Respondent No. 1 (as contained in Annexure – 1), order dated 10.02.2011 passed by the Respondent No. 2, (as contained in Annexure-2) and order dated 10.02.2008 passed by the Respondent No. 3 (as contained in Annexure-3).
(b) to issue a writ, order or direction in the nature of mandamus commanding the Respondent No. 3 to consider the applications for compounding moved by the petitioner (Annexure – 6) and order dated 05.06.2010 (Annexure-4) be modified holding that the structure measuring 10 ft X 15 ft. is capable of compounding.”
2. The case, as set forth in the writ petition, in brief, is as follows:
One Shri Suchendra Hariyal submitted a plan for sanctioning construction of HSS Resorts before the third respondent (Haridwar Development Authority through its Secretary). Vide order dated 05/07.08.1996, the plan was sanctioned by the third respondent. The entire structure was made before the year 1998. The construction was completed as per the sanctioned map by 07.04.2001 within the time given by the sanctioning authority. The petitioner purchased the aforesaid property in the year 2004; it is named as Ganga Beach Resort. The Resort and the land underneath belong to the petitioner. Thereafter, it is stated in paragraph no. 5 of the writ petition as follows:
“5. That it is stated that the ground level of the Resort is at a height of 130 ft. from the water level of River Ganga and therefore to give strength to the Resort, there were two options either to construct a retaining wall or to construct a RCC structure. Since there were number of natural springs, therefore it was not advisable to construct retaining wall and keeping in view of geographical situation, RCC structure was made to give strength to the Resort. RCC structure were raised constructing columns of 5’, 12’, 12’, 12’, 12’ and 15’ in height by putting RCC Slabs between each of the columns as RCC slabs have much more load bearing capacity then the retaining wall. This RCC structure is not being used for the purpose of Resort/Hotel but is meant for the purpose of giving strength. This RCC structure was made before 1998.
Next, it is stated that the third respondent, on the basis of an ex parte order dated 10.02.2008 (it may be noticed, it is one of the impugned orders in this case) coupled with an ex parte report of the Junior Engineer held that the petitioner had made unauthorized construction in an area of 102 Ft. X 15 ft. by raising RCC columns. The said order was passed ex parte without affording any opportunity to the petitioner. The petitioner filed an appeal before the second respondent, who is shown as the Chairman/Commissioner, Garhwal Mandal, Pauri Garhwal. Next, it is stated that the petitioner filed applications for compounding of the alleged unauthorized construction vide Annexure No. 6. The applications are stated to be dated 01.08.2008 and an undated application. They were decided by the third respondent by order dated 05.06.2010. The third respondent while allowing the compounding application had imposed compounding fees, development and other charges amounting to Rs. 13,47,754,/-, which was deposited by the petitioner. It is stated, in fact, that the entire construction has been completed prior to the year 1998; it was wrongly observed that only 75 per cent of the construction has been completed. It is stated that legal opinion and technical report was sought from the department and the third respondent placed reliance on the report of the JE/AE. The statement that the construction was in variance of the sanctioned plan was wrong, besides vague. The appellate authority decided the matter against the petitioner. Petitioner filed Annexure No. 7-Revision impugning the order dated 10.02.2008 and the order dated 10.02.2011 passed by the appellate authority
