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2008 DIGILAW 22 (HP)

Surjit Singh v. Municipal Corporation

2008-01-10

DEEPAK GUPTA, V.K.AHUJA

body2008
JUDGMENT : Deepak Gupta, J. 1. Petitioners are the owners of a building known as Gujral House/Theog House, near Satkar Hotel, Lakkar Bazar, Shimla. They submitted a plan for construction of two storeyed structure on the plot belonging to them on 30.7.1982. According to the Municipal Corporation, the petitioners instead of erecting a two storeyed structure, constructed a four storeyed building. The building admittedly fall in Jakhu area where the maximum storeys allowed are three storeys. 2. A show cause notice was issued to the petitioners under Section 253 of the H.P. Municipal Corporation Act as to why the unauthorized structure should not be demolished. After receipt of the notice and hearing the petitioners, the Commissioner, Municipal Corporation came to the conclusion that the plan sanctioned in favour of the petitioners was only for two storeys. He further held that the petitioners had unauthorizedly added one additional floor on the top of the building and had also allegedly opened the basement thereby creating one more additional floor. He directed the petitioners to close the basement measuring 43.75 square meters and demolish the top storey measuring 89.33 square meters within a week failing which the same would be done by the Municipal Corporation, Shimla at the risk and cost of the petitioners. Aggrieved against the said order, the petitioners filed an appeal under Section 253(2) of the H.P. Municipal Corporation Act before the learned District Judge. 3. The main ground raised by the petitioners was that they had submitted a revised plan showing the additional storey and since no orders were passed on this plan, it should be deemed that the plan has been sanctioned in their favour in view of Section 247(1) of the H.P. Municipal Corporation Act. The learned District Judge rejected the appeal and held that once there was a sanction for construction of only two storeys, mere submission of a revised plan would not entitle the petitioners to claim deemed sanction in terms of the revised plan. The orders passed by the learned District Judge, Shimla as well as Commissioner, M.C.Shimla, have been challenged by means of this writ petition. 4. As far as the first ground is concerned, section 247(1) reads as follows:- “247(1). The orders passed by the learned District Judge, Shimla as well as Commissioner, M.C.Shimla, have been challenged by means of this writ petition. 4. As far as the first ground is concerned, section 247(1) reads as follows:- “247(1). Where within a period of sixty days after the receipt of any notice under Section 243 of section 244 or of the further information, if any, required under section 245, the Commissioner does not refuse to sanction the building or work or upon refusal does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same: Provided that if it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by any proposed regular line of a public street or extension, improvement, widening or alteration of any street, the Commissioner may withheld sanction of the building or work for such period not exceeding sixty days as he deems fit and the period of sixty days shall be deemed to commence from the date of the expiry of the period for which the sanction has been withheld.” 5. It is apparent that section 247 only applies to the plan submitted under Section 243 or Section 244 of the Act, and has no applicability to any other plan. Though the petitioners have alleged that they had submitted the revised plan, this fact is not correct. A perusal of the reply filed by the petitioners to the notice under Section 253 clearly reveals that the plan submitted on 2.8.2994 was a completion plan and not a revised plan. There can be no deemed sanction of a completion plan. The learned District Judge has rightly held that the provisions of Section 247 were not applicable in the present case. A completion certificate has to be issued in terms of Section 257 of the Act and the completion plan is required to be submitted in terms of the said section. There can be no deemed sanction of a completion plan. The learned District Judge has rightly held that the provisions of Section 247 were not applicable in the present case. A completion certificate has to be issued in terms of Section 257 of the Act and the completion plan is required to be submitted in terms of the said section. Section 247 of the Act has no applicability to such revised/completion plan and, therefore, this contention made on behalf of the petitioners is rejected. 6. The next contention of the petitioners is that they had not added a storey but they have only deviated from the original plan and this deviation can be compounded especially in view of the fact that three storeys are permissible in the area of Jakhu. This contention is also without any force. It is clearly mentioned in Section 254(5) of the Act that the expression “minor in nature” will not include the addition of a storey. Constructing an extra floor beyond the sanctioned plan is not something minor in nature. Addition of the storey can never be treated as deviation and amounts to a major departure from the sanctioned plan and cannot be allowed to be compromised. 7. In a civilized society, the rule of law must prevail. This Court cannot countenance the mushroom growth of illegal structures. There can be no misplaced sympathy in favour of persons who violate the law with impunity. The admitted facts are that the petitioners had applied for sanction of plan to construct a two storeyed structure. They have now added a third storey and also opened the basement resulting in the erection of a four storeyed structure in total violation of the sanctioned plan and in violation of the law. 8. It would be pertinent to mention that when the petition came up for admission, one of us ( Deepak Gupta, J) on 3.2.2006 passed the following orders on the stay application:- “CMP No. 186 of 2006 Notice in the aforesaid terms. In the meantime, the top floor of the building known as Gujral House, Lakkar Bazar, Shimla shall not be demolished subject to the condition that the petitioner shall close the basement and shall not use it for any purpose whatsoever. In the meantime, the top floor of the building known as Gujral House, Lakkar Bazar, Shimla shall not be demolished subject to the condition that the petitioner shall close the basement and shall not use it for any purpose whatsoever. The basement shall be closed by the petitioner within three weeks and thereafter the petitioner shall give intimation of the same to the Municipal Corporation who can get the premises inspected.” 9. On 3.4.2006, it was submitted by learned counsel for the petitioners that the petitioners have complied with the orders dated 3.2.2006. This fact was contested by respondent No.2. The learned counsel for respondent No. 2 on 25.6.2007 had informed this Court that the entire basement has not been closed and showed certain photographs in this behalf. Even on that day, the petitioners had contested the stand of the respondent No.2. Thereafter we had passed a detailed order appointing a Local Commissioner to visit the spot and ascertain the factual position. The Local Commissioner visited the spot and furnished his report in which he clearly found that a portion of the basement was being used by the petitioners as a toilet and there was a staircase leading to the basement to the ground floor of the house. 10. The petitioners misled this Court and obtained a stay order by giving an assurance that they would shut down the basement. Persons like the petitioners who have violated the law with impunity and have shown scant regard for the orders of this Court cannot now turn around and ask for mercy. It is only after the report of the Local Commissioner was filed that the petitioners first filed an application to use the staircase and also filed another application stating that the basement was sealed in its entirety. Unfortunately, the petitioners have woken up at a very late stage and at this stage, no sympathy can be shown to them for the reasons stated hereinabove. The petitioners have no legal right and the construction has been found to be absolutely illegal. The conduct of the petitioners is such, which disentitles them from any sympathy whatsoever. 11. Keeping in view the aforesaid facts, the writ petition is rejected with costs assessed at Rs.5000/-. The petitioners have no legal right and the construction has been found to be absolutely illegal. The conduct of the petitioners is such, which disentitles them from any sympathy whatsoever. 11. Keeping in view the aforesaid facts, the writ petition is rejected with costs assessed at Rs.5000/-. The petitioners are directed to remove the offending third storey to the satisfaction of the Municipal Corporation on or before 28.2.2008 failing which the Municipal Corporation, shall demolish the offending structure within two weeks thereafter at the cost and risk of the petitioners. The petitioners shall also keep the basement sealed. The Municipal Corporation shall not consider the case of the petitioners for addition of the attic as a third storey. The writ petition is disposed of in the aforesaid terms.