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2018 DIGILAW 1124 (HP)

Anil Aggarwal v. Himuda

2018-06-19

TARLOK SINGH CHAUHAN

body2018
ORDER : Tarlok Singh Chauhan, J. This Court vide judgment dated 14.12.2017 had noticed the total encroachment made by the petitioner as under:- Ground Floor 39.89 x 10.76=429 sq. ft. First Floor 120.395x10.76=1295 sq.ft. Second Floor 120.395x10.76=1295 sq.ft. Total 280.68x10.76=3020 sq.ft. 2. It is only after noticing the magnitude of this encroachment that this Court directed the respondents to hold an inquiry within six months and fix responsibility and report compliance before 18.06.2018. It was also made clear that the fact that some of the officials/officers may have retired or are no longer in the services of the respondents shall not come in the way in holding such inquiry. 3. On 18.06.2018, learned counsel for respondent No.1 stated that compliance report was ready and would be filed during the course of the day. 4. When the case was taken up today, the report of the Committee was not on record and thereafter called from the Registry. 5. From the perusal of the so called "report", it appears that the orders passed by this Court have been taken in a casual and callous manner by the respondents as is evident from the fact that the members of the Committee as constituted by the respondents held its first and last meeting on 4th May, 2018 and the proceedings thereof read as under:- "Proceedings of the committee meeting constituted for compliance of judgment passed by the Hon'ble High Court on 14.12.2017 in CWP No.10237 of2012, titled as Anil Aggarwal v. HIMUDA held on 4.5.2018 at 11.00 A.M. under the chairmanship of Superintending Engineer, (S), HIMUDA, Kasumpti, Shimla-9, in her chamber. The following were present:- 1. Er. Anjori Kapoor Superintending Engineer(S) Chairperson. 2. Er. R.C. Bhatia Executive Engineer, HIMUDA Division Parwanoo Member. 3. Er. Ajay Sharma, Executive Engineer, HIMUDA Division Nahan. Member Secretary 4. Er. B.R.Raghuvanshi, AE, Sub-Division, Nahan Member Superintending Engineer, (S), welcomed the member of the Committee. The Executive Engineer HIMUDA Division Nahan put all the relevant record before the committee. The committee examined the record. As per record plot No.18 in Housing colony at Nahan was allotted to Shri Anil Kumar Aggarwal vide letter No. HB-3-1/94-Nahan/Admn.- dated 30.3.2002 and possession was handed over on dated 11.7.2002. He started construction on the plot during the year 2005. At that time following officers/officials were holding the charge:- 1. The Executive Engineer, Er.Umesh Sharma. 2. Assistant Engineer, Sh. Sucha Ram (Now Retd.) 3. He started construction on the plot during the year 2005. At that time following officers/officials were holding the charge:- 1. The Executive Engineer, Er.Umesh Sharma. 2. Assistant Engineer, Sh. Sucha Ram (Now Retd.) 3. Junior Engineer, Smt. Pradeep Kumari On noticing the encroachment, the Assistant Engineer, HIMUDA, Sub-Division Nahan served the notice on 18.10.2005 to vacate the encroachment measuring 47.49 Sqmt. before 1.11.2005 but he did not vacate the encroachment. The Assistant Engineer wrote the letter to Advocate on dated 2.11.2005 vide letter No. HIMUDA-NSD-court case/2005-569 to draft the plaint so that case could be filed in the Hon'ble court at Nahan. On getting the plaint vetted and signed from the competent authority, the Assistant Engineer, Nahan vide his letter No.1036 dated 8.3.2006 wrote to the Advocate to file the case in the Hon'ble court. The case was filed in the Hon'ble court of Collector Nahan Sub-Division which was decided on 30.4.2010 in favour of HIMUDA to remove the unauthorized construction. Thereafter Sh. Anil Kumar Aggarwal filed an appeal in the court of Ld. Divisional Commissioner Shimla camp at Nahan which was also dismissed by Divisional Commissioner on 19.8.2011. Thereafter, warrants of ejectment were issued by the Collector Nahan on dated 28.9.2012 which was later stayed by the Hon'ble High Court on 14.3.2013. From the perusal of all the facts as stated above the committee comes to the conclusion that there was no lapse in performing duty by any officer/official as timely action was taken on their part. Sd/- Assistant Engineer Sub-Division Nahan Sd/- Executive Engineer Division Parwanoo Sd/- Executive Engineer Division Nahan Sd/- Superintending Engineer (S) HIMUDA Shimla-9." 6. A perusal of the aforesaid minutes would reveal that the respondents have only cared to make mention about notice dated 18.10.2005 that was served upon the petitioner to vacate the encroached land measuring 47.49 Sq. Mtrs before 01.11.2005, whereas, this Court has already set out in detail the extent of the encroachments made by the petitioner (supra). Therefore, it was incumbent upon the Committee constituted by the respondents to have clearly spelt out as to how and during whose tenure such encroachments came into existence. After all, the total encroachments that too at different floors of more than 3000 sq. Therefore, it was incumbent upon the Committee constituted by the respondents to have clearly spelt out as to how and during whose tenure such encroachments came into existence. After all, the total encroachments that too at different floors of more than 3000 sq. feet could have not come about over night and furthermore construction of such magnitude could not have been raised and gone undetected and unnoticed without the active connivance of the officials of respondent. Therefore, the Committee constituted by the respondents has tried to hoodwink this Court by not projecting true and correct picture by concluding that there was no lapse in performance of duty by any officer/official. 7. After all, how many properties are owned or leased out by respondent No.1 in Paonta Sahib so as to conclude that its officials could not detect the unauthorized constructions and encroachments made by the petitioner. This Court has no hesitation to observe that the aforesaid Committee instead of assisting this Court in order to curb the menace of illegal constructions and thereby bringing about true picture before this Court have not only made every endeavour but have left no stone unturned to shield or protect such officers/officials little realizing that this would only embolden the others to raise unauthorized constructions. 8. Thus, the Committee members are prima facie found to have deliberately disobeyed and violated with impunity the clear-cut directions passed by this Court. The Committee members have remained oblivious to the fact that the punishment to those who may be responsible, directly or indirectly, for coming up of such unauthorized constructions and encroachments shall be a deterrent and, therefore, no leniency in such matters can be shown. A message is required to be sent that despite the position an Officer may have been holding in hierarchy, he would severely dealt with in case of direct or indirect involvement in the unauthorized constructions or encroachments of the nature with which this Court is concerned. 9. At this Stage, Shri Neeraj Gupta, learned counsel for respondent No.1, requests that another opportunity to comply with the directions passed by this Court may be afforded to him. Such request appears to be genuine. However, the Committee as constituted by the respondents cannot be let scot-free as this Court has already concluded that the members thereof had deliberately and willfully disobeyed and violated the orders passed by this Court. 10. Such request appears to be genuine. However, the Committee as constituted by the respondents cannot be let scot-free as this Court has already concluded that the members thereof had deliberately and willfully disobeyed and violated the orders passed by this Court. 10. Therefore, respondent No.1 is directed to initiate disciplinary proceedings against the members of the Committee and complete the same within six weeks from today and thereafter submit the same to this Court. In addition thereto, the respondents are directed to constitute a fresh Committee which shall be headed by the CEO-cum-Secretary, HIMUDA, who in compliance to the directions passed by this Court on 14.12.2017 shall submit his report on or before 20th August, 2018.