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2018 DIGILAW 1597 (HP)

Court On Its Own Motion v. State Of Himachal Pradesh

2018-09-04

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, A.C.J. - Letter petitioners namely, Shri Gurmeet Singh, son of Shri Ram Singh and Shri Satinder Kumar Avasthi, son of Shri Salig Ram, through communication dated 8.5.2018, invite attention of this Court to the alleged illegalities committed by the promoters of Mehta Colony, Ward No.1, Ropar Road, Nalagarh, District Solan, Himachal Pradesh. 2. Notice in the petition was issued to the State and response called for. 3. On 25.6.2018, this Court passed the following order:- "Letter petitioner has invited attention of this Court of rampant unauthorized construction carried out by certain persons within the Municipal Council, Nalagarh. The contents of the letter petition, from the response so filed by Mr.K.C. Chaman, Chief Executive Officer, Baddi Barotiwala Nalagarh Development Authority (respondent No.4), who is present in Court, have turned out to be correct. It stands admitted that even previously certain complaints were received from private individuals and way back in the year 2014 itself, a Special Investigating Team (SIT) was constituted for ascertaining such facts. Such SIT constituted vide notification dated 30th November, 2006 (Page-57) submitted its report way back on 27th May, 2014 (Page-59 to 61). As per said report, several persons had raised construction in gross violation of provisions of H.P. Town & Country Planning Act, 1977. Also violations of the provisions of H.P. Land Revenue Act, 1953, were found to be there. Additionally, Government land was found to have been encroached. Affidavit does not state that such report in false. The moot issue which arises for consideration is as to why no action was taken by the officer from May, 2014 till date. Even now, the affidavit is conspicuously silent as to what steps are likely to be taken for taking remedial measures in consonance with the report of SIT. To the contrary, the officer has expressed his helplessness of taking any action, for according to him it is the Municipal Council, Nalagarh which is required to do so. Before we pass any further order, we want to know who were the officers responsible for taking action on the report of SIT and why no action was taken by them or against them for their acts of omission and commission. Before we pass any further order, we want to know who were the officers responsible for taking action on the report of SIT and why no action was taken by them or against them for their acts of omission and commission. As such, we direct the Additional Chief Secretary (TCP & UD) to the Government of Himachal Pradesh (respondent No.2) to file his personal affidavit, disclosing the names of all the person who were manning the offices who were required to take action on the report. Needful be positively done within a period of two weeks from today. Also, record of the report and how it was dealt with be made available on the next date of hearing. Also, and in any event, before the next date of hearing, we expect the Chief Secretary to the Government of Himachal Pradesh (respondent No.1) to ensure necessary action in terms of report of SIT (Page-50 to 61) for removing all unauthorized constructions / encroachment and demolishing that par t of the structure which is found to be unauthorized. List on 9th July, 2018, on which date the Chief Executive Officer, BBNDA shall remain present in Court." 4. We notice that the Deputy Commissioner, Solan, has filed his affidavit dated 25.7.2018, inter alia, stating as under:- "6. That as per the report of Sub-Divisional Officer (C), Nalagarh dated 09.07.2018, the sub-division of land was approved by the Town and Country Planning Department and Shri Jagdish Prasad Soni was required to surrender land earmarked for Park, Green Land, School, Septic Tank, Nursing Home and Open Land for public utility in favour of the State Government which he did not do. It is relevant to submit that the revenue record of Nalagarh Town was with the settlement department and settlement operations in Nalagarh were under process at that time. It is further submitted that Shri Jagdish Prasad Soni did not get the approval of Town and Country Planning implemented in the revenue records. It is also submitted that most part of the land was sold by Shri Jagdish Prasad Soni. 7. That it is submitted that settlement operations in Nalagarh were under process at the time when the permission under section 16 of the Town and Country Planning Act was granted/approved in favour of Shri Jagdish Prasad Soni and the old Khasra numbers were replaced by new Khasra numbers. 7. That it is submitted that settlement operations in Nalagarh were under process at the time when the permission under section 16 of the Town and Country Planning Act was granted/approved in favour of Shri Jagdish Prasad Soni and the old Khasra numbers were replaced by new Khasra numbers. The whole revenue records were in the custody of Settlement department. From the perusal of sale deed bearing no. 353 dated 08.05.1991, it would be seen that the sub-division of land so approved by the Town and Country Planning department did not appear in the revenue records issued by the revenue staff of settlement department, which makes it amply clear that the sub-division of land was not got implementation by the land owner." 5. Based on such averments, we had directed the Additional Chief Secretary (TCP) to the Government of Himachal Pradesh, to have the matter examined and file his personal affidavit, indicating the measures taken by the government for dealing with the is sues of unauthorized/illegal construction carried out by the private parties and also non compliance of provisions of law. Though the Additional Chief Secretary (TCP & UD) to the government of Himachal Pradesh (Shri Ram Subhag Singh) has filed his affidavit dated 23.8.2018 (page 332) but specifically not dealt with all these aspects. However, it stands averred that necessary directions stand issued to the authorities for strict implementation of provisions of law. 6. We notice that the Sub Divisional Magistrate, Nalagarh, has filed his affidavit dated 26.8.2018 (page 367), placing on record a corrigendum dated 3.8.2018 (page 370), whereby a Committee of certain officers stands re-constituted for effective implementation of orders passed by this Court. 7. Learned Advocate General states that in effect, the Committee so constituted should have been to monitor and ensure strict compliance of provisions of law, more so after ascertaining as to whether:- (a) the report of the Special Investigation Team so submitted in the year 2014 was acted upon or not; (b) There was proper implementation of provisions of the scheme(s) sanctioned for development of the colony in question by the Town and Country Planning Department under the provisions of the H.P. Town and Country Planning Act, 1977; and (c) whether there were any violation of the provisions of the H.P. Land Revenue Act, 1953 or not. 8. 8. Learned Advocate General further states that the said Committee be deemed to be reconstituted and modified with the Sub Divisional Magistrate, Nalagarh, heading the same and for the same, necessary directions shall positively be issued by the appropriate authority within a period of one week from today. Statement accepted and taken on record. 9. We notice that at some point in time, Shri Ashutosh Vaidya (private respondent No.8) had raised allegations against the letter petitioners of their misuse of the protection so granted to them, pursuant to orders passed by this Court. On this issue we have already passed appropriate orders. 10. Learned Advocate General further states that the present petition can be closed, leaving it open for the parties, to initiate appropriate proceedings if so required and desired with a further direction to the Committee, constitution whereof be modified by the State, to examine all issues, including implementation of the report of the Special Investigation Team and the plans approved by the Department of Town and Country Planning, indicating/ specifying the areas to be put to use for public utility and also proper implementation of provisions of the Town and Country Planning Act. 11. Learned Advocate General further states that in this area, subject matter of lis, no construction of whatsoever nature, shall be allowed to be raised, save and except in consonance with the provisions of law. Such statement on behalf of the Additional Chief Secretary (TCP & UD) to the Government of Himachal Pradesh is accepted and taken on record. 12. As such, we are perused by the learned Advocate General to close the present proceedings, which we so do, in the following terms:- (i) Statement made by learned Advocate General on behalf of Additional Chief Secretary (TCP & UD), is accepted and taken on record. No construction of whatsoever nature shall be allowed to be raised in the area in question, save and except, in accordance with law. Violation, if any, shall tantamount to contempt of Court. (ii) That a fresh notification shall be issued constituting a proper Committee only of the Officers and not officials, to be headed by the Sub Divisional Magistrate of the area. This shall be so done within one week from today. Violation, if any, shall tantamount to contempt of Court. (ii) That a fresh notification shall be issued constituting a proper Committee only of the Officers and not officials, to be headed by the Sub Divisional Magistrate of the area. This shall be so done within one week from today. (iii) That said Committee shall examine all the issues in terms of the statement made on behalf of the State through learned Advocate General and submit its report to the Government within a period of two months from today. (iv) It shall be open for anyone of the private parties to invite attention on any matter pertaining to the scope of inquiry by the Committee, including the documents placed before this Court. (v) Report of the Committee shall be made available to the parties before us. (vi) The Additional Chief Secretary (TCP & UD) to the Government of Himachal Pradesh shall ensure that appropriate action, in accordance with law, is taken on the said report within a period of four weeks from the date of submission of such report. (vii) We clarify that we have not expressed any opinion on merits and all issues are left open. As such, liberty is reserved to anyone of the parties to approach this Court by filing an independent petition on the same and subsequent cause of action. (viii) All interim orders shall stand vacated. (ix) We clarify that construction, if any, to be carried out in the interregnum period, shall be allowed to be carried out strictly in accordance with law, more specifically, in terms of the statements made by the learned Advocate General. 13. Before parting, we wish to place on record our appreciation for the efforts put in by Mr. N.K. Sood, learned Senior Advocate as Amicus Curiae, in assisting the Court. With the aforesaid observations, present petition as also all application, stand disposed of.