RATNAMANI NAUTIYAL Vs. STATE OF UTTARAKHAND & OTHERS
HIGH COURT OF UTTARAKHAND
State of Uttarakhand and others
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(1.) The petitioner before this Court is challenging the sealing order dated 16.03.2012 passed by the development authority i.e. Mussorie Dehradun Development Authority (hereinafter referred to as 'M.D.D.A.'), which has been constituted under the provision of Uttar Pradesh Urban Planning & Development Act, 1973 (hereinafter referred to as 'Act'). The sealing order has been passed under Sections 27(1) and 28(1) of the Act, which reads as under:-
"27. Order of demolition of building (1) Where any development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or contravention of any conditions subject to which such permission, approval or sanction has been granted, in relation to the development area, then, without prejudice to the provisions of Section 26, the Vice Chairman or any officer of the Authority empowered by him in that behalf may make an order directing that such development shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance development has been commenced or is being carried out or has been completed, within such period not being less than fifty days and more than forty days from the date on which a copy of the order or removal, with a brief statement of the reasons therefor, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, the Vice-Chairman or such officer may remove or cause to be removed the development, and the expenses of such removal as certified by the Vice-Chairman or such officer shall be recoverable from the owner or the person at whose instance the development was commenced or was being carried out or was completed as arrears of land revenue and no suit shall lie in the civil court for recovery of such expenses.
Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made.
28. Power to stop development (1) Where any development in a development area has been commenced or continued in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted then, without prejudice to the provisions of Sections 26 and 27, the Vice-Chairman of the Authority or any officer of the Authority empowered by him in that behalf, may make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly."
(2.) As per the M.D.D.A., the construction made by the petitioner is an unauthorized construction and hence proceedings are being drawn against him under Section 27 of the Act for demolition of the same, but as an interim measure and under the power vested in the M.D.D.A. under Section 58 of the Act, the order of sealing has been passed.
(3.) The contention of the learned Senior Advocate Mr. J.P. Joshi for the petitioner is that the construction in question had already been completed prior to the date when M.D.D.A. came into existence i.e. 26.10.1984.;
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