ALERT WOMEN RIGHTS PROTECTION SOCIETY Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-7-87
HIGH COURT OF UTTARAKHAND
Decided on July 25,2012

Alert Women Rights Protection Society Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

BARIN GHOSH,.J. - (1.) IN the writ petition, it was contended that on 21st July, 2001 an order was passed, which is binding on all and sundry, to the effect that no construction shall be permitted within 200 metres from the bank of river Ganga. A copy of the said order was annexed. In the petition, it was contended that the private respondents herein have constructed a building within 200 metres from the bank of river Ganga in violation of the said binding order. In view of such contention, the writ petition was accepted and notice was issued. In answer to the notice, respondents appeared and contended that the building in question has been constructed on the basis of map sanctioned as far back as in 1990. The original sanction was produced by the Development Authority. Sanction, thus, granted was not called in question. In order to satisfy that the construction, as stands today, is within the parameter laid down in the sanction, we appointed a Special Officer and asked the District Administration to assist the Special Officer for the purpose of carrying out measurement of the existing structure and to compare the same with the sanction accorded. The object was to see, whether any construction has been made in excess to the permission that was granted in 1990. The Special Officer has filed a report, wherein he has stated that the measurement in question was taken by the officers of the District Administration under his supervision in the presence of the parties, when he found that whereas the sanction accorded in 1990 permitted total construction of 3994.89 Sq. metres, the existing building is only on 2174.06 Sq. metres. He has stated that in the 2nd floor of the first building and in 7th floor of the third building, there were some extra constructions than the sanction. He also found that the mumpties of the second and the third buildings are also in excess to some extent of the sanction granted. According to the order earlier passed, the Special Officer has handed over those portions of the buildings in question to the private respondents, which he found to be well within the sanctioned plan. He has not given possession of the 2nd floor of the first building as well as possession of the 7th floor of the third building alongwith mumpties of the second and third buildings. An objection to the said report has been filed by the petitioner, where he has not questioned the findings, thus, recorded by the Special Officer. He, however, has contended that since the sanction accorded in 1990 was only for user of the constructed building as a residential building, private respondents can use the building in question only for residential purpose and not for hotel/resort purpose. We called upon the learned counsel for the petitioner to show us that in 1990, while obtaining a sanction, it was necessary to indicate that the residential building would be used for hotel/resort purpose. Learned counsel failed to bring the same to our notice. At the same time, learned counsel has not brought to our notice that change of user of a residential building for hotel/resort purpose is required to be obtained from any authority established by law.
(2.) IN the circumstances, there is hardly any scope of interference in the writ petition. The fact that there has been extra construction on the 2nd floor of the first building and in the 7th floor of the third building and also in mumpties of the second and third buildings, are left to be decided by the Development Authority in accordance with law, but having regard to the fact that the constructed area of the building does not exceed permissible constructible area under the sanction, we direct the Special Officer to hand over possession of the 2nd floor of the first building, 7th floor of the 2nd building as well as the mumpties of the 2nd and 3rd buildings to the private respondents.
(3.) WITH the direction as above, the writ petition stands disposed of.;


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