Reserved on: 01.07.2025 Delivered on: 17.07.2025 HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2096 of 2024 (M/S) Smt. Raj Rani Bajaj ….......Petitioner Vs. District Level Development Authority, Nainital and others …..…..... Respondents Present : Mr. Aditya Singh, Advocate for the petitioner. Mr. Sandeep Kothari, Advocate for respondent no.1 and 2. Mr. Mahendra Singh Bisht, Brief Holder for respondent no.3. JUDGMENT Per: Hon’ble Ravindra Maithani, J. (Per:) The hotel of the petitioner was sealed on 02.05.2024 by the respondent no.1/District Level Development Authority, Nainital (“the authority”). The petitioner seeks quashing of the Sealing Memo dated 02.05.2024; directions to the respondents to de-seal the property and permit to carry out the repair works pursuant to the permission granted on 30.03.2024 by the authority. 2. Heard learned counsel for the parties and perused the record. 3. The petitioner runs a hotel in Nainital. She wanted to undertake certain repair works, for which, she applied to the authority and on 30.03.2024, she was granted permission to repair the building including white-washing, flooring tiles, change of doors and windows, etc. The petitioner was carrying out the works when, according to the petitioner, under the oral directions of the respondent no.2/Commissioner, Kumaon Mandal, Nainital (“the 2 Commissioner”) the building was sealed on 02.05.2024. Subsequently, a recommendation for proceedings under Sections 27(1) and 28(2) of the Uttarakhand Urban and Country Planning and Development Act, 1973 (“the Act”) was submitted. On 04.05.2024, the authority issued a notice under Section 28(1) of the Act to the petitioner to stop the repair works and he was served with a Notice under Section 27(1) of the Act on 04.05.2024, which was replied by the petitioner. But, no action was taken, therefore, the instant petition. 4. The authority has filed its counter affidavit. In para 5 of its counter affidavit reasons for sealing the building have been given, which are as follows:- “That it is submitted herein that in the garb of the aforesaid permission for carrying out repairs, it was found that instead of carrying out repairs certain walls have been erected in the basement contrary to the permission so granted and observing such violations committed during inspection carried out by the learned Commissioner, Chairman of the District Level Development Authority, internal walls on all floors have been demolished to convert it into a cafe, the property was sealed on 2nd of May, 2024 the proceedings were initiated under section 27(1) and 28(1) of the Uttarakhand Urban and Country Planning and Development Act, 1973 and thereafter the notices have been issued to the petitioner which was duly served on her son on 4th of May 2024 and thereafter on 6th of May 2024. That even the Hon’ble Supreme Court in the case of Dr. Ajay Singh Rawat Vs. Union of India reported in 1995 SCC (3) 266 has categorically directed that even no commercial constructions should be allowed and the action of the petitioner of raising walls and making an attempt to construct the entirely new café also amount to violation of the orders of the Hon’ble Supreme Court restraining any commercial construction with the Nainital Municipality.” 3 5. Learned counsel for the petitioner submits that entire action of the authority is illegal; the Commissioner has orally ordered for sealing of the building on 01.05.2024, whereas he is an appellate authority under the provisions of the Act. Therefore, his action is bad in the eyes of law. The following points have also been raised on behalf of the petitioner:- i. The petitioner was carrying out repair works for which, as such no permission is required in view of Section 52(a) of the Act. ii. Even the petitioner had sought permission to repair the building. 6. Learned counsel for the authority submits that the petitioner was granted permission to repair the building, but he started erecting a wall in the basement, therefore, directions were given by the Commissioner to look into the matter and subsequently, in accordance with the provisions of the Act, sealing order has been passed. 7. In the instant matter, after hearing the parties on 30.04.2025, this Court had directed the respondent nos.1 and 2 to explain the following two points:- “(i) How under the oral order of the respondent no.2, sealing of a premises could be done, which is evident by Sealing Memo Dated 02.05.2024, Annexure No.2 to the writ petition? (ii) Even if the petitioner was raising a wall in the basement, how proceedings under the Act could be initiated as for such alterations, the provisions of the Act are not applicable, in view of Section 52(a) of the Act?” 4 8. The authority and the Commissioner, both have filed the compliance affidavits. The authority in its compliance affidavit, in para 5 has stated that sealing order was passed only after considering the violation of the Act. The Commissioner in his compliance affidavit writes that on 01.05.2024, during inspection, it was found that renovation/repairing work was being undertaken, which was absolutely impermissible in terms of the Resolution passed by the board of the authority, therefore, the subordinates were required to look into the matter and to do the needful. 9. These versions given by the authority and the Commissioner are inconsistent with the sealing memo, which is filed as Annexure No.2 to the writ petition. It categorically records that the building was sealed on 02.05.2024, based on oral directions given on 01.05.2024, by the Commissioner. This Court leaves it, at it. 10. With regard to query no.2, raised on 30.04.2025, as to how the raising of a wall in the basement may be violative of the provisions of the Act in view of Section 52(a) of the Act. In para 6 to 9 of its compliance affidavit, the authority has submitted as follows:- “6. That with respect to the issue No.2, it is most respectfully submitted here that it is submitted herein that there is one of the peculiar aspect in respect of provisions containing Section 52(a) of the Uttarakhand Urban and Country Planning and Development Act. On 20th of December 2017 in the meeting of the District Level Development Authority Nainital, the aspect of the renovation and repairing of the properties situated at Nainital was considered. 5 7. That it is submitted herein that applicability in Nainital is slightly different for the simple reason that in GIS mapping zone 1 and 2 were identified, where even the permission with respect to repairing or renovation is not to be granted. 8. That it is also relevant to mention herein that these particular aspects have been clarified in the said meeting and it is specifically mentioned in the said meeting that the reconstructions or repairing/improvement, is permissible without obtaining permission from the development authority to certain extent, however, it is specifically resolved that any structural changes such as raising column and Beam, new load bearing wall, putting a new slab or removing the old load bearing wall, is not within the purview of the exemption from seeking sanction even in the case of repairing. The copy of the board resolution dated 20.12.2017 is being filed as Annexure no.CA-1 to this affidavit. 9. That further the board of development Authority in its meeting held on 26.03.2022 has resolved in agenda item no.16.12, when it was decided to seek appropriate guidance from the state govt. in as much within 30 meters of periphery of lake even the repairing is not permissible. The copy of the resolution dated 26.03.2022 is being filed as Annexure no.CA-2 to this affidavit.” 11. Similar is the version of the Commissioner in his compliance affidavit. 12. Section 52(a) of the Act is as follows:- “52. Savings- Nothing in this Act shall apply to- (a) The carrying out of works for the maintenance, improvement or other alterations of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building;” 13. The sealing memo records that the building was sealed as a wall was being raised in the basement. At the most it effects the interior of the building, which does not materially affect the external appearance of the building. In such circumstances, the provisions of the Act in view of Section 52(a) of the Act does not 6 apply. Then why sealing? Where is a question of violation of the Act? 14. Learned counsel for the respondents submit that the Board Resolution dated 20.12.2017, records that reconstructions/repairing/improvement is permissible without obtaining permission from the authority to certain extent, however, it was resolved in the Board Meeting dated 20.12.2017 that any structural changes, such as raising columns and beams, new load bearing wall, putting a new slab or removing the old load bearing wall is not within the purview of exemption from seeking sanction in case of repairing. 15. This argument has less force. In all the notices including sealing memo, it is the case of the respondents that the petitioner was raising a wall in the basement. It is not the case of the respondents that the petitioner was doing any structural change, such as raising column and beam, new load bearing wall, putting a new slab or removing any old load bearing wall. Therefore, the Resolution dated 20.12.2017 has no effect in the instant case. 16. Learned counsel for the respondents further argued that in Agenda No.16.12 of the Board Meeting held on 26.03.2022, within 30 Meters of the lake, even repairing is not permissible. 17. This argument is against the permission that was granted by the authority to the petitioner on 30.03.2024. The petitioner has been granted permission by the authority to carry out repair works. 7 18. Now, there are two things. It has not been shown that the petitioner was raising the wall, which in any manner, materially affect the external appearance of the building. Therefore, in the instant case, the provisions of Section 52(a) of the Act come into play and accordingly, the provisions of the Act are not applicable. Even otherwise, for the repair works, the petitioner has already been granted permission by the respondents. 19. In the instant matter, pursuant to order dated 30.04.2025 of the Court, the authority has filed a compliance affidavit and also filed certain photographs alongwith it in Annexure 4. In page 28 of this compliance affidavit, there are two photographs. During the course of hearing, as such, arguments were not made on those photographs. Therefore, matter was further heard on 14.07.2025. The Court invited attention of learned counsel for the petitioner to the bottom photograph at Page 28 of the compliance affidavit of the authority, which shows that a steel frame has been fixed in the parking area and on the right side of it provision of door has been made. If the parking area is closed and door opened, it will definitely change the external appearance of the building. For closing the parking area the petitioner has not sought any permission. It is not even the case of the respondent that the parking are of the building has been closed. 20. Learned counsel for the petitioner immediately admitted that the parking area in the ground floor of the building shall remain as such and steel frame shall be removed. 21. The Court takes on record this statement. 8 22. In view of the foregoing discussion, the Court is of the view that the petition deserves to be allowed subject to certain direction. 23. The writ petition is allowed. 24. The impugned order dated 02.05.2024 is hereby set aside. The respondents are directed to de-seal the property and permit the petitioner to carry out the repair works in accordance with to the permission granted to her on 30.03.2024 by the authority. 25. Before de-sealing the building, the respondent authority shall ensure that the green colour steel frame placed by the petitioner in the ground floor parking area of the building with provision of the door (as shown in the bottom photograph of the compliance affidavit dated 20.05.2025 of the respondent no.1 authority, at Page 28) is removed and the parking area is restored to its original position. (Ravindra Maithani, J.) 17.07.2025 Sanjay SANJAY KANOJIA Digitally signed by SANJAY KANOJIA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=e50e50b49596520698eff87e0a08bbd504686 df4d1afc60f54a287831dec46fe, postalCode=263001, st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC45 0A84B515A087CAEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA Date: 2025.07.31 11:32:52 +05'30'