Sealing of unauthorised construction does not require a written order if a previous sealing order exists. Petitioners' lack of clean hands can lead to dismissal of their petition.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. By means of the instant petition, the petitioners seek directions to the respondent no. 2, the District Level Development Authority, Nainital (“the Development Authority”) to open the seal placed on the old portions of the petitioners’ building, Parsi Lal Sah Studio Building, Mallital, Nainital (“the building”).

2. Facts necessary to appreciate the controversy, briefly stated, are as follows:

(i) The petitioner no. 1 is a tenant of the first floor of the building by virtue of an allotment order issued in the year 1980, in favour of his father.

(ii) The petitioner no. 2 is the tenant of the ground floor of the building.

(iii) On 15.04.1999, the Development Authority accorded approval for necessary repairs of the building subject to certain conditions.

(iv) On 06.08.1999, the approval for repairs accorded on 15.04.1999 was cancelled.

(v) On 04.09.1999, again, the Development Authority accorded approval for necessary repairs of the building.

(vi) Pursuant to the approval dated 04.09.1999, the petitioners did not carry out any repair work.

(vii) On 29.11.2013, the petitioners again sought permission for the repairs of the building from the Development Authority.

(viii) On 19.07.2016, notices were issued to the petitioners by the Nagar Palika, Nainital, informing them that the building is in dilapidated condition. Therefore, they should ensure its repairs.

(ix) On 18.07.2017, the petitioner no. 1 made a communication to the Additional District Magistrate, Nainital, seeking compensation for the loss caused due to heavy rains, as also seeking directions to the Development Authority for repairs of the building.

(x) The Development Authority noticed that the petitioners and others replaced the retention wall adjoining the building to a length of 12 metres and had erected four RCC Columns for construction of a building. Therefore, on 18.10.2016, Secretary, Nainital Lake Region Special Area Development Authority, Nainital, in Case No. 11166/45/2016, Nainital Lake Region Special Area Development Authority, Nainital vs. Smt. Jayanti Gurrani and Others (“the case”) passed an order for sealing of the building. In that order, the construction that was raised till that stage has also been clearly recorded. According to it, in the front portion of the retention wall, RCC Columns were raised in an area of 11 x 2.80 metres and partially, brick wall was also raised, which was covered by a polythene. Thereafter, the order speaks that lintel on the RCC Columns were laid and the unauthorised construction was continued.

3. It is argued on behalf of the petitioners that pursuant to order dated 18.04.2016, passed in the case, the building was actually sealed. Thereafter again, according to the petitioners, on 08.04.2021, 31.05.2021 and 01.06.2021, the officers of the Development Authority sealed the windows and doors portion of the petitioners’ residential accommodation without any order, as required under Section 28-A of the Uttarakhand Urban and Country Planning and Development Act, 1973 (“the Act”). The petitioners seek directions that such sealing be opened, which were done on these three days, namely, 08.04.2021, 31.05.2021 and 01.06.2021.

4. The Development Authority filed its counter affidavit. According to it, the building had already been sealed on 18.10.2016, by an order passed in the case, but, it was noted that the petitioners had continued illegal constructions. Therefore, the Secretary of the Development Authority was informed and under his oral orders, the building was sealed on 08.04.2021. When this further sealing of 08.04.2021 was violated, it is the case of the Development Authority that again sealing was done on 31.05.2021. According to the Development Authority, when the officers/officials visited the building for sealing purposes, they were obstructed in their discharge of duties. Therefore FIR No. 31 of 2021, under Sections 186 and 353 IPC, was also lodged at Police Station Mallital, District Nainital, which i