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2017 DIGILAW 940 (HP)

Madan Lal Verma v. Municipal Corporation, Shimla

2017-08-17

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. Petitioner being aggrieved with encroachment having been made by private respondent, on the public path and with the order dated 30.1.2017, (annexure P-16), passed by Divisional Commissioner, Shimla, in case No. 13/2016, titled Mitter Singh versus Madan Lal & others, whereby, Commissioner, Municipal Corporation, Shimla, has been ordered to keep order dated 24.12.2016, passed by him, in abeyance/in-operative, till the final disposal of revision petition having been filed by private respondent No.3, namely M.S. Thakur, filed instant writ petition, under Article 226 of the Constitution of India, seeking therein following main relief(s):- “i. Issue a writ of certiorari to quash Annexure P- 15 and P- 16 i.e. appeal and impugned order dated 30-01-2017. ii. Issue a writ of mandamus directing the Respondent authorities not to implement Annexure P-16 i.e. impugned order dated 30-01-2017. iii. Issue a writ of mandamus directing the respondent authorities to initiate appropriate necessary action for removal of encroachments made by the private respondents on the public path. iv. Issue a writ of mandamus directing the respondent authorities to initiate appropriate necessary action for having filed false affidavits for obtaining sanction to construct their respective buildings. v. Issue a writ of mandamus directing the respondent authorities to initiate appropriate necessary action for cancellation of building sanction accorded in favour of the private respondents. vi. Issue a writ of mandamus directing the respondent authorities to initiate appropriate necessary action to have the public path in question built at the earliest.” 2. Key facts, which may be necessary for the adjudication of the present case are that respondents No.3 and 4, while getting their building plans sanctioned from Municipal Corporation, Shimla, surrendered some portion of their lands for the purpose of public path. Copy of sanctioned plan annexure P-10, placed on record also depicts public path having width of 3.05 metres. Aforesaid plan of buildings owned and possessed by respondents No.3 and 4 were approved/sanctioned on 21.3.2003 and 18.10.2003, by Municipal Corporation, Shimla, taking note of the specific affidavit dated 5.3.2003, 29.6.2004, 22.12.2006, having been filed by aforesaid respondents, wherein, they had categorically undertaken to surrender certain pieces of land from their lands, on share basis, solely with a view to widen the public path. Perusal of annexure P-6 clearly suggests that respondent No.3 had undertaken to surrender a strip of 30 cms of land to increase existing path to 3.05 metres. Perusal of annexure P-6 clearly suggests that respondent No.3 had undertaken to surrender a strip of 30 cms of land to increase existing path to 3.05 metres. It is not in dispute as clearly emerges from the pleadings adduced on record by respective parties that aforesaid condition having been imposed by Municipal Corporation, Shimla, while granting approval, was not objected to by the private respondents, rather, they, themselves, furnished affidavits undertaking therein to surrender certain portion of land out of their lands to make public path already existing on the spot, more wider. It emerges from the material available on record that private respondents after having got their plans sanctioned, failed to honour the undertaking given by them, as a result of which, representations/ complaints on behalf of the petitioner as well as other residents of the area came to be received by Deputy Commissioner, Shimla as well as Municipal Corporation, Shimla. It also emerges from the record that Deputy Commissioner, Shimla, taking note of the aforesaid complaints, directed District Revenue Officer, Shimla, to carry out inspection on the spot (vide communication dated 7.3.2015), who, in turn inspected the spot on 23.4.2015, after issuance of proper notices to all concerned and conducted inspection in the presence of various stakeholders including respondents No.3 and 4. District Revenue Officer, in its report (Annexure P-4), specifically concluded that Mr. M.S. Thakur, respondent No. 3, has raised construction of compound wall on the area being used for the purpose of public path and which path has also been shown in joint ownership of the cosharers, during partition, bearing Khasra Nos. 4348/1, 4349/1 and 4350, and has violated provisions of Building Byelaws, for which authority concerned is competent to proceed as per provisions of law. Deputy Commissioner, taking note of the aforesaid report, submitted by District Revenue Officer, requested the Commissioner, Municipal Corporation, Shimla, to take necessary action on the basis of report (annexure P-). It also emerges from the perusal of Annexure P-7 and Annexure P-8 that the Architect Planner, Municipal Corporation, Shimla, repeatedly, asked respondent No.3 to submit Tatima showing public path to the plot. It also emerges from the perusal of Annexure P-7 and Annexure P-8 that the Architect Planner, Municipal Corporation, Shimla, repeatedly, asked respondent No.3 to submit Tatima showing public path to the plot. Vide communication dated 27.10.2014, the Architect Planner, Municipal Corporation, Shimla, specifically reminded respondent No.3, that there is mandatory provision in the MC Building Bye-laws to have 3.05 metre wide path abutting to the one side of individual building/plot and at the time of revised sanction, said respondent had shown a path 2 Karam wide and 30 cm wide strip of land was surrendered by him for the provision of path and in the Tatima submitted by aforesaid respondent, path had not been shown abutting to the plot. Subsequently, Municipal Corporation, Shimla, vide order dated 24.12.2016, after having invited objections from the general public, for declaring public path, 77 metres in length and 3 metres in width, passing through Khasra Nos. 4346/1, 4348/1, 4350/1, 4350/2 and 4350/3, Baragaon, Block No. 7, Sector 6, Phase III, Shimla, for use of general public, declared path in question to be public path, under Section 226 of Municipal Corporation Act. It clearly emerges from the order dated 24.12.2016 (Annexure P- 1) that aforesaid order was passed by Municipal Corporation, after having taken note of the objections raised by respondents No.3 and 4, which were not found tenable in view of the fact that path was already available abutting to their properties and they had undertaken to surrender certain portions of their lands to make public path wider. It also emerges from the record (annexure P-14) that Municipal Corporation, floated tender for repair and maintenance of aforesaid road leading to Bara Gaon from HIMUDA Block Nos. 7, 11 and 12 (removal of slips and construction of retaining wall, Ward No. 23) and in this regard, work came to be awarded to contractor namely Kuldip Kumar, for a an amount of Rs.74,945/-. 3. Private respondents being aggrieved and dissatisfied with the aforesaid order dated 24.12.2016 (Annexure P-1), preferred revision petition, annexure P-15, before the Divisional Commissioner, Shimla, who, vide order dated 30.1.2017, directed the Commissioner, Municipal Corporation, Shimla, to keep the aforesaid order dated 24.12.2016, annexure P-1, in abeyance/inoperative, till the final disposal of revision petition. In the aforesaid background, petitioner approached this Court, seeking reliefs, as have been reproduced herein above. 4. Mr. B.C. Negi, Senior Advocate duly assisted by Mr. In the aforesaid background, petitioner approached this Court, seeking reliefs, as have been reproduced herein above. 4. Mr. B.C. Negi, Senior Advocate duly assisted by Mr. Pranay Pratap Singh, Advocate, while inviting attention of this Court to sanctioned plans as well as undertakings, annexures P-10, P-11, P-12 and P-6, furnished by private respondents, vehemently argued that there was no occasion for the Divisional Commissioner to pass impugned order dated 30.1.2017. Mr. Negi, learned Senior Advocate, further contended that no revision petition could be entertained by Divisional Commissioner, against order dated 24.12.2016, passed by Municipal Corporation, Shimla, declaring path in question to be a ‘public path’. While inviting attention of this Court to Clause 7.11 of Building Bye-laws, 1998, of Municipal Corporation, Shimla, annexure P-17, Mr. Negi, learned Senior Advocate contended that it is statutory duty of the Municipal Corporation, Shimla to provide public path. Clause 7.11 of the Building Bye-law makes it obligatory on the part of owner to provide proper path/street giving access to the plots into which the land may be divided and path/streets will be so provided that it shall connect with a regular public or private street. While inviting attention of this Court to the sanctioned plan as well as undertakings given by private respondent, Mr. Negi, learned Senior Advocate contended that had private respondents not furnished undertakings, whereby they agreed to surrender certain portions of their lands for making public path more wide, their plans would not have been sanctioned, as such, they are required to be dealt with, in accordance with law. 5. Mr. G.D. Verma, Senior Advocate duly assisted by Mr. B.C. Verma, Advocate and Mr. Ashwani Kaundal, Advocate, representing respondents No.3 and 4, respectively, were unable to dispute factum with regard to affidavits having been furnished by respondents No.3 and 4 at the time of getting their plans sanctioned from competent authority. Mr. Verma, learned Senior Advocate, while invitation attention of this Court to Annexures P-4 and P-16, made an attempt to persuade this Court that present petition is not maintainable, in view of pendency of revision petition before Divisional Commissioner, who is seized of the matter. Aforesaid counsel, representing private respondents, also contended that apart from path in question, alternative approach to the plot of petitioner is available, which has been already declared to be public path and as such present petition be dismissed being devoid of merit. 6. Aforesaid counsel, representing private respondents, also contended that apart from path in question, alternative approach to the plot of petitioner is available, which has been already declared to be public path and as such present petition be dismissed being devoid of merit. 6. We have heard the learned counsel representing the parties and also gone through the record. 7. It is not in dispute before us that building plans of respondents No.3 and 4, only came to be sanctioned subject to undertakings furnished by aforesaid respondents that they shall be surrendering certain portions of lands from their own lands to make public path wider. It is also not in dispute that path was already in existence at the time of submission of plans/maps by private respondents. Since private respondents had bound themselves to surrender some portions of their lands, we see no illegality or infirmity in the order dated 24.12.2016, passed by Municipal Corporation, Shimla, declaring land measuring 77 metres in length and 3 metres in width, passing through Khasra Nos. 4346/1, 4348/1, 4350/1, 4350/2 and 4350/3, situate at Bara Gaon, Block No. 7, Sector 6, Phase III, Shimla, as public path. It also emerges from the record, which has been taken note of above, that inquiry was got conducted by Deputy Commissioner, through District Revenue Officer, who subsequently pointed out towards encroachment having been made by private respondents on the public path. 8. This Court, after having carefully perused material available on record, sees substantial force in the arguments of Mr. Negi, learned Senior Counsel, representing petitioner that an attempt has been made to hoodwink the authorities by not complying with the undertakings given by them by way of affidavits given at the time of getting their plans sanctioned. Since, building plans of private respondents were sanctioned subject to specific undertakings given by the private respondents, they can not be allowed to state at this stage that there is an alternative path available to the plot of the petitioner. There may be more than one paths leading to the plot of the petitioner but once, private respondent had undertaken to provide certain lands for the construction/ widening of public path, that too, to get their plans sanctioned, no fault, if any, can be found with the action of the Municipal Corporation, Shimla, declaring land in question, to be ‘public path’. 9. 9. It is quite evident from the record that building plans of private respondents were sanctioned on 18.10.2003 and 21.3.2003, respectively i.e. fourteen years back, that too with the condition of making land available for widening of public path, but, till date, private respondents, on one pretext or the other, have succeeded in not allowing authorities concerned to widen public path, strictly in terms of sanctioned building plans. Now, private respondent No.3 has further filed revision petition before Divisional Commissioner, laying therein challenge to order passed by Municipal Corporation, Shimla, declaring path in question to be a ‘public path’. 10. We do not see any force in the arguments of Mr. G.D. Verma, learned Senior Advocate, representing respondent No.3, that present petition is not maintainable in view of pendency of revision petition before Divisional Commissioner. 11. In the instant case, petitioner has prayed for a writ of mandamus directing respondent authorities to initiate appropriate necessary action for removal of encroachment made by private respondent on the public path. There is no dispute that path was already in existence at the spot, and the same was only required to be widened, for making it usable for the residents of the area. Municipal Corporation, Shimla, is well within its right to remove obstruction, if any, on the path, which has been subsequently declared to be ‘public path’, especially when building plans of private respondents were approved and sanctioned by Municipal Corporation, Shimla, taking into consideration affidavits having been filed by the aforesaid respondent, undertaking therein to surrender certain portions of land for widening of public path. 12. At the cost of repetition, as has been taken note above, it is bounden duty of the land owners/building owners to provide proper path/streets giving proper access to the plots/houses of the persons residing adjacent to their buildings/lands. 13. Consequently, in view of the detailed discussion made herein above, we see valid reasons to interfere with the order dated 30.1.2017 passed by Divisional Commissioner, Shimla, who, apparently, without taking note of the undertakings having been filed by the private respondents, proceeded to stay order dated 24.12.2016, passed by Municipal Corporation, Shimla, declaring path in question to be a ‘public path’. 14. Accordingly, the writ petition is allowed. Impugned order dated 30.1.2017 passed by Divisional Commissioner, (Annexure P-16) is quashed and set aside. 14. Accordingly, the writ petition is allowed. Impugned order dated 30.1.2017 passed by Divisional Commissioner, (Annexure P-16) is quashed and set aside. Municipal Corporation, Shimla is directed to ensure that path in question is restored/widened, after having included land, undertaken to be surrendered by private respondents by way of affidavits, forthwith. Needless to say, private respondents shall render all cooperation to the authorities in widening the public path, failing which they shall render themselves liable for contempt of this Court. Pending applications, if any, are also disposed of. Interim directions, if any, are vacated.