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2008 DIGILAW 346 (HP)

O. P. Laul v. State of H. P.

2008-07-09

R.B.MISRA, SURJIT SINGH

body2008
JUDGMENT (R.B.Mishra, J.) (Oral) - The present appeal has been preferred against the order dated 25th April, 2008 passed by the learned Single Judge, in CWP No. 279 of 2005, dismissing the writ petition with the direction that the appellant was not legally entitled to construct 5th storey over the building, in question, and the construction raised by him in view of order dated 7.7.2005 by fixing concrete slabs on the top floor/5th floor, at his own risk and responsibility,was subject to the final decision of the writ petition and it cannot give right and entitlement to the appellant and as such, the appellant was directed to demolish the construction raised by him on or after 7.7.2005 and to restore the position as it existed prior to 7.7.2005 within three weeks from 25.4.2008. 2.For adjudicating the present appeal, it is necessary to take the background of the case. The appellant was accorded permission to raise five storeys building vide order No. 140 dated 1.5.1975. A revised-cum-completion plan of a hotel was approved by the Municipal Corporation, Shimla in short called “Corporation” vide order No. 458 dated 12.11.1976. An application of appellant of the year 1988, seeking permission to raise 5th storey, was rejected by the Municipal Commissioner on 22.4.1997. The appeal preferred against the said order before the Divisional Commissioner was also dismissed on 1.12.1997. CWP No. 215 of 2004 preferred against the above order was dismissed as withdrawn on 9.6.2004 with the observations that if a representation is made by the appellant to the appropriate authority, the same shall be considered and disposed of on its merits within three months. Accordingly, a representation dated 17..6.2004 submitted by the appellant to the Municipal Corporation was dismissed by the Commissioner respondent No. 4 on 16.9.2004. 3.Subsequently, writ petition No. 1101 of 2004 preferred against the above order was also allowed to be dismissed as withdrawn on 23.12.2004 with liberty to assail the order of the Commissioner before the appellate authority. 4.It appears that the petitioner preferred a revision petition under Section 403 of the Himachal Pradesh Municipal Corporation Act, 1994 (in short called “Corporation Act”) against the order dated 16.9.2004. A speaking order was passed by this Court (DB) on 11.4.2005, with an observation that the revision petition of the appellant shall be disposed of by the Revisional Authority keeping in view the observations made therein within a stipulated time. A speaking order was passed by this Court (DB) on 11.4.2005, with an observation that the revision petition of the appellant shall be disposed of by the Revisional Authority keeping in view the observations made therein within a stipulated time. 5.The Secretary, Department of Urban Development, decided the revision petition on 20.5.2005 during pendency of the writ petition upholding the order of the Commissioner dated 16.9.2004, therefore, an application preferred by appellant seeking permission for amendment of the writ petition was allowed by this court. This Court (DB) in the peculiar facts and circumstances of the case, passed an order on 7.7.2005 permitting the appellant to erect, fix or put concrete slabs on such portion of the top floor/5th floor as would ensure the avoidance of leakage and seepage, however, such permission was at the risk and responsibility of the appellant and the same was subject to outcome of the writ petition. 6.Learned Single Judge while adjudicating CWP No. 279 of 2005, in question, has noted submissions of Shri B.C.Negi, learned counsel for the appellant herein that the appellant had acquired vested right to erect 5th storey in view or order No. 140 dated 1.5.1975. (i) Learned Single Judge has also noted the contention of Mr.Negi that the application preferred by the appellant in the year 1988, was to be considered as per law then existing and not as per the present existing laws. (ii) The building in the year 1975 and necessary permission was accorded to him in the year 1975 itself and as per revised-cum-completion plan, he was permitted to raise 4 1/2 storeys on 12.11.1976 for which he was bound to submit a completion certificate, as per building bye-laws. 7.Learned Single Judge has also taken into consideration the submissions advanced on behalf of the respondents as below:- (i) According to respondents No. 1 and 2 earlier permission granted to the appellant on 1.5.1975 was superseded by subsequent order dated 12.11.1976, whereby appellant had been granted permission to construct 4 1/2 storey. (ii) According to Mr.Shrawan Dogra, learned counsel for respondents No. 3 and 4, as per the provisions of Interim Development Plan, prevalent on the date of consideration of the application of the appellant, only two storeys could be raised in the core area. (ii) According to Mr.Shrawan Dogra, learned counsel for respondents No. 3 and 4, as per the provisions of Interim Development Plan, prevalent on the date of consideration of the application of the appellant, only two storeys could be raised in the core area. (iii) To construct the building was regulated in the year 1975, under the Himachal Pradesh Municipal Act, 1968 (in short called ‘Municipal Act’), whereby as per Section 199, no person could erect or re-erect or commence to erect or re-erect any building without the sanction of the Committee. In view of Section 200 of the Municipal Act, the Committee was empowered to make bye-laws with regard to erection or re-erection of buildings. Section 206 of the ‘Municipal Act’ provides that sanction accorded for the construction of building will lapse after one year. (iv) The Committee under Section 198, 199 and 200 of the ‘Municipal Act’, had framed the bye-laws which were duly notified in the month of February, 1975. Bye-law 13 specifically provides that no person shall construct any building of more than five storeys, including the ground floor. Bye-law 16 indicates regarding completion certificate. 8.Learned Single Judge has considered mainly following points: (i) Once the appellant had submitted revised-cum-completion plan on 12.11.1976, the earlier permission accorded to him vide EO No. 140 dated 1.5.1975 stood superseded. An application of appellant for raising 5th storey was rejected by the Commissioner on 22.4.1997 by the time the Himachal Pradesh Municipal Corporation Act, 1979 in short called ‘Municipal Act, 1979’had come into force, whereby construction of a building was to be regulated under Chapter XIV of ‘Municipal Act, 1979’. In view of Section 266 of ‘Municipal Act, 1979’, the period of completion of building work was to be specified by the Commissioner while sanctioning the erection of a building or execution of a work and in case of non-completion of work within the period specified, it could not continue without fresh sanction from the competent authority. Section 271 of ‘Municipal Act, 1979’ also stipulates completion certificate. (ii) The Himachal Pradesh Town and Country Planning Act, 1977, in short ‘Town and Country Planning Act’ came into force from 30.9.1977, whereby the State published the interim Development Plan for the town of Shimla and its suburbs in the year 1979. Section 271 of ‘Municipal Act, 1979’ also stipulates completion certificate. (ii) The Himachal Pradesh Town and Country Planning Act, 1977, in short ‘Town and Country Planning Act’ came into force from 30.9.1977, whereby the State published the interim Development Plan for the town of Shimla and its suburbs in the year 1979. As per “Town and Country Planning Act”, a person could raise only three storeys in the area where appellant’s property is situated. Since the appellant had submitted building plan in the year 1988, the same was to be regulated under the provisions of “Municipal Act, 1979” as well as under “Town and Country Planning Act” and the interim Development Plan published in the year 1979. Since the application of the appellant submitted in the year 1988, for all intents and purposes, was a fresh application, as such he could not be allowed to take advantage of the earlier sanction accorded to him on 1.5.1975. As such, the rejection of the appellant’s application by the Commissioner vide order dated 22.4.1997 was held to be justified by the Secretary, Department of Urban Development. (iii) After coming into force of the Municipal Corporation Act, 1994, the application was to be considered as per the provisions of the said Act and the building bye-laws framed in the year 1998, whereby in view of bye law 2.03 all mandatory zonal plan regulations regarding use, coverage, set backs, open spaces, height, number of storeys, parking standards etc. for various categories of building, including modification thereon made from time to time, were to be made applicable in the building regulations. (iv) The building/hotel of the appellant is situated, only two storeys constructions is permissible and in view of the Regulations which came into force from 22.8.2002, the floor area ratio of 1.00 has to be adhered to. The Secretary, Department of Urban Development has taken into consideration the notification dated 22.8.2002 as well as the floor area ratio while dismissing the revision filed by the appellant. (v) The Secretary, Urban Development has considered in his order that the floor area ratio of 4 1/2 storeyed hotel of the appellant is 1096.17 square meters, which exceeds the permissible floor area ratio. (v) The Secretary, Urban Development has considered in his order that the floor area ratio of 4 1/2 storeyed hotel of the appellant is 1096.17 square meters, which exceeds the permissible floor area ratio. As such, the Secretary,Urban Development has rightly held that the appellant could not raise 5th storey in the core area as the floor area ratio of his existing structure exceeds the limit prescribed under the amended regulations. (vi) The notification dated 5.6.2003 issued by the State Government prescribing strict norms or raising new construction and for re-construction of old building in the heritage zone, whereby the construction in the heritage zone area could be permissible under the specific recommendations made by the Advisory Committee and permitted by the State Government. 9.Learned Single Judge has also taken note of the decision of Supreme Court in Howrah Municipal Corporation and others Vs. Ganges Rope Co. Ltd. and others 2004(1) SCC 633 as well as the verdict and observations made by the Supreme Court in Commissioner of Municipal Corporation Shimla Vs. Prem Lata Sood and others, 2007(7) Scale 737 : 2007(Suppl) Current Law Journal (H.P.) SC1, whereby it was indicated that no permission shall be granted to construct a building in the heritage zone in violation of the ecology. Learned Single Judge has also rightly given due weightage to the observations of the Supreme Court made in Prem Lata Sood (supra) as below: “It is now well-settled that where a statute provides for a right, but enforcement thereof is in as several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion, is no longer res-integra. Furthermore, since special regulations have been framed in the town of Shimla, the core area as provided for in the regulation is required to be protected. The area in question has been declared to be heritage zone, and hence no permission to raise any construction can be issued, which would violate the ecology. Such regulations have been framed in public interest. The area in question has been declared to be heritage zone, and hence no permission to raise any construction can be issued, which would violate the ecology. Such regulations have been framed in public interest. Public interest, as is well known, must override the private interest (See: Friends Colony Development Committee V. State of Orissa and others, AIR 2005 SC 1 para 22).” 10.We have heard the learned counsel for the parties, perused the documents on record and have also gone through the impugned order. We are of the considered view that the learned Single Judge has rightly held that the appellant has no vested or acquired right to raise 5th storey, as per sanction granted to him on 1.5.1975, which was superseded by even order No. 458 dated 12.11.1976. We are also of the considered view that the Secretary, Urban Development has correctly dismissed the revision petition of the appellant on 20.5.2005 and the same has rightly been appreciated by the learned Single Judge. The learned Single Judge has also rightly observed that the appellant cannot take protection of interim order dated 7.7.2005 passed on CMP No. 1186 of 2005 preferred in CWP No. 279 of 2005 and the construction made after 7.7.2005 cannot be allowed to be retained and as such it was rightly ordered to be demolished with direction to restore the position as it existed prior to 7.7.2005. 11.In our considered view, learned Single Judge has rightly observed that the application of the applicant was to be considered, as per the law applicable at the time of consideration of his application/revision. 12.We do not find any merit in the appeal. The same is, therefore, dismissed. However, keeping in view the humble prayer of the leaned counsel for the appellant for allowing the appellant three weeks more time to comply with the order dated 25.4.2008, two weeks time is allowed to the appellant to maintain the position of the construction raised on 5th storey, which was prevalent on or before 7.7.2005, meaning thereby that the appellant has to restore the position as it existed prior to 7.7.2005. M.R.B. ————————