Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 1032 (HP)

Kuldeep Singh v. State of Himachal Pradesh

2012-12-24

DEEPAK GUPTA

body2012
JUDGMENT Deepak Gupta, J 1. The petitioner by means of this writ petition has prayed for grant of the following reliefs: “i) Issue a writ of certiorari to quash the pending investigation before the State Vigilance and Anti Corruption Bureau Shimla, Himachal Pradesh. ii) Issue a writ of mandamus directing the Respondent authorities not to proceed further with the pending investigation before the State Vigilance and Anti Corruption Bureau Shimla, Himachal Pradesh. iii) Issue a writ of certiorari to quash the pending proceedings initiated in furtherance of Annexure P-10 i.e. notice dated 04.04.2009. iv) Issue a writ of mandamus directing the respondent authorities not to proceed further with the pending proceedings initiated in furtherance of Annexure P-10 i.e. notice dated 04.04.2009.” 2. Briefly stated, the facts of the case are that the petitioner herein purchased a plot measuring 159.69 Sq. metres in Kaithu, Tehsil and District Shimla in the year 2006. The plot had been approved for construction in favour of the predecessor-in-interest of the petitioner. At that time necessary permissions from all concerned were obtained and according to the Forest Department no trees were existing on the spot. 3. After the petitioner purchased the plot, he submitted plans to the Municipal Corporation, Shimla for renewal of grant of development permission. Again an enquiry was conducted and after completing all codal formalities, the Municipal Corporation, Shimla vide order dated 2.5.2008 granted renewal to the petitioner of the plans submitted by him. Thereafter the petitioner started raising construction over the plot in question. It appears that another inspection was carried out some time in March 2009. The Assistant Conservator of Forests along with Range Officer and Forest Guard visited the site where the petitioner was carrying out digging/excavation of his plot. This Committee found that there was one green “deodar” tree; one green “oak” tree and one dry “kail” tree which were standing on or abutting the boundary of the plot of the petitioner. Thereafter the Divisional Forest Officer (DFO), Shimla sent a communication to the Municipal Corporation, Shimla in this regard on 31.3.2009. 4. This Committee found that there was one green “deodar” tree; one green “oak” tree and one dry “kail” tree which were standing on or abutting the boundary of the plot of the petitioner. Thereafter the Divisional Forest Officer (DFO), Shimla sent a communication to the Municipal Corporation, Shimla in this regard on 31.3.2009. 4. Taking note of the aforesaid communication the Commissioner, Municipal Corporation, Shimla issued notice under Section 248 of the HP Municipal Corporation Act, 1994 to the petitioner alleging that the house building sanction had been obtained by suppressing the material fact that there were trees on the boundary of the plot and the petitioner was asked to show cause why the building sanction should not be withdrawn. 5. The petitioner filed reply to the same and alleged that he had only purchased the plot in the year 2006 and the building sanction had already been granted earlier. The Commissioner, Municipal Corporation, Shimla during the course of this enquiry directed the Tehsildar (Urban) to demarcate the land in the presence of officials of the Municipal Corporation, Shimla and the Forest Department. On 19.6.2010 the Commissioner, Municipal Corporation, Shimla came to the conclusion, on the basis of the report of the Junior Engineer dated 14.6.2010, that after demarcation it had been found that there are green trees existing within the plot boundary of the petitioner which were not indicated in the approved drawing. The Commissioner, Municipal Corporation, Shimla found that the building permission had been obtained after suppression of material facts. He, therefore, referred the matter to the Director General of Police, State Vigilance and Anti Corruption Department since such sanction could not have been granted without the complicity of the officials concerned. He further restrained the petitioner from carrying out any further construction till the investigation was completed. 6. Aggrieved by the order of the learned Additional District Judge, the petitioner filed CMPMO No. 351 of 2010 in this Court which was decided by this Court on April 18, 2011. During the pendency of the CMPMO numerous opportunities were given to the Municipal Corporation to get the enquiry completed, but the same was never completed. This Court had, therefore, come to the conclusion that petitioner Kuldeep Singh could not be restrained indefinitely from raising the construction since there was a sanctioned plan in his favour and the building was almost complete. This Court had, therefore, come to the conclusion that petitioner Kuldeep Singh could not be restrained indefinitely from raising the construction since there was a sanctioned plan in his favour and the building was almost complete. The CMPMO was disposed of with the following directions:- “a) That the respondent can complete the work of enclosing the lintels by raising walls and carrying out work within the four walls; b) He shall however not be entitled to extend the building on any side, nor shall he be entitled to raise the roof till the matter is decided; c) It is made clear that any construction raised by the respondent shall be subject to the final outcome of the enquiry and if it is later found that trees existed on the plot or on the boundary and that the building permission was obtained after suppression of material facts, then all consequences shall follow and if the building or any portion thereof has to be demolished, the respondent shall not raise any objection or claim any equity in this regard.” 7. After the decision of the aforesaid case, another demarcation was carried out in April 2011 in which it was found that on the south-west boundary of the plot towards Khasra No. 533 one deodar tree is present. However, the petitioner did not accept this report. Despite more than one and a half year have been passed since the earlier judgment was delivered by this Court the vigilance enquiry has not completed and the construction has been raised on the spot. 8. Without going into the other allegations, it appears that if there was any case worth the while against the petitioner, the same would have been completed till now. The sword of Damocles cannot be allowed to hang over the petitioner’s head for eternity. Furthermore, the petitioner purchased a plot with a sanctioned plan from the erstwhile owner. When the plan was sanctioned it was not the petitioner who submitted the same. On various occasions the forest officers and Municipal Corporation officers visited the spot and found no tree at the site. Any illegality in the sanction due to presence of trees on the boundary of the plot could not have happened without the express connivance of the Municipal Corporation and forest officials. On various occasions the forest officers and Municipal Corporation officers visited the spot and found no tree at the site. Any illegality in the sanction due to presence of trees on the boundary of the plot could not have happened without the express connivance of the Municipal Corporation and forest officials. Till date no action has been taken against any official and I find no reason why the petitioner who on the face of it is not at fault should suffer. 9. Therefore, the writ petition is allowed and the investigation going on against the petitioner before the State Vigilance and Anti Corruption Bureau is quashed. It is however, made clear that the building of the petitioner should be constructed strictly in accordance with the sanctioned plan and in case there are deviations then the same be dealt with in accordance with law. No order as to costs.